Examination of Witnesses (Questions 60
- 79)
TUESDAY 24 APRIL 2007
RT HON
BARONESS ASHTON
OF UPHOLLAND
Q60 Chairman: What persuaded you
that you needed another round of consultation?
Baroness Ashton of Upholland:
I have met with anybody who has asked to meet me. It has mainly
been members of the press, which will be of no surprise, but we
have invited anybody who has wanted to come to talk to us and
my officials have been talking to organisations, public bodies
as well, as you would expect. What became clear was that as well
as wanting to think about the aspects that we put forward, they
wanted to consider the principle behind what we were seeking to
do. That was completely reasonable and we decided to do a second
consultation.
Q61 Dr Whitehead: When we heard from
witnesses last year, including the Information Commissioner, they
told us that it really was too soon after the implementation of
the Act to make changes to the charging regime. Did you consider
that costs for delivering freedom of information might, in any
event, reduce once, for example, officials became more experienced
at making decisions and there was an established body of decisions
for reference purposes?
Baroness Ashton of Upholland:
Indeed and my ambition is always that there are far more proactive
releases. Ultimately, freedom of information should be about bodies
putting out information as a matter of course and then requesters
do not have to make the request in the first place. Of course
we do expect the amount of cost to decrease for the Information
Commissioner too as the number of appeals should hopefully decrease
too, as he said in his latest evidence to you. The difficulty
with this particular area is that it is about people's time, which
although you can cost of course, it is quite difficult to say
that somebody who is involved in the Police Service or in the
Health Service who is not doing the job that they should be doing
because they are doing this, cannot be replaced by simply putting
money at the problem because of their expertise and so on. That
is why they need to be both doing their front-line job and also
the person who is reading through the material. The specific difficulty
was that it is a different kind of cost: it is a cost of the time
of people who are necessarily not then doing what they would have
been doing.
Q62 Dr Whitehead: If those public
bodies become in general more efficient and they can make more
effective use of existing provisions in the Act as they get more
familiar with how the Act works, for example, then would some
of those overlaps that you describe not give you scope for reducing
costs anyway?
Baroness Ashton of Upholland:
If I might give you an example, one of the issues that I know
the Information Commissioner raised with the Committee, and which
is an area of interest but a separate area, is section 14 about
vexatious requests where he has expressed a concern and he described
it in his oral evidence to you. He was surprised that section
14 was not used more often than it currently is. He has very helpfully
issued additional guidance and we are talking to him about making
sure people understand when it is appropriate to use that. That
is an area which you might think would be something, if it were
used more effectively, would affect what I am describing, but
it does not. What I am describing are completely legitimate requests
that simply of their nature require a huge amount of work to be
undertaken. The example I have been using with media organisations,
which may well have found itself in the press, is a request to
the Treasury for files relating historically to the way in which
economic decisions have been made. This is completely legitimate
as an academic piece of work and it would be part of the book
by an eminent academic. I do not know who it is, but I am reliably
informed it is. The Treasury are perfectly comfortable with releasing
that information, but in order to release it, it will take about
two years to do this on a regular basis. With that particular
individual, they have accommodated each other and they are able
to release the information to him on a regular basis as he writes
the book and that is fine and a decision is made about which information
comes out. In theory that individual could have demanded that
information within the timetable that is available, that would
have been completely legitimate, and the Treasury would have had
to put a large number of people to work simply to go through the
documents and of course they must all be read before they can
all be released. We do not want organisations, public authorities
to not release information. We do not want them to do anything
other than be as cooperative as they possibly can be and indeed
all the people who have raised this with us do so on the basis
of saying "We want to find a solution ideally with the requester
that will help us to give out the information" which in many
cases will be finding a way by staggering the process or knowing
what is coming. I understand the Association of Chief Police Officers
produces information on a regular basis to a number of organisations,
so do individual police forces to local newspapers and so on.
They have found a way of accommodating each other, it works perfectly
well, I do not want to get in the way of any of those arrangements,
rather I want to encourage those arrangements to happen. It is
possible to send off a request that says "I want everything
you have ever done on X" which will require somebody who
should be doing a job to have to look at it and where the requester
will simply not amend the request or talk to them about what it
is they really want so that it can be made to work; that is when
we are in some difficulty. At the end of the day we want to give
the backstop of being able to say "Actually, if you are not
prepared to collaborate with us, we have to say no, because we
cannot have people spending so much time on these requests".
The way we wanted to approach it was in actually requiring organisations
to work through a process with the requester that tried to get
a solution that did not require them to say no.
Q63 Chairman: That is not what your
proposals do. Your proposals are not about requiring requesters
with very voluminous requests to engage in the process of discussion
as to how these requests can better be accommodated.
Baroness Ashton of Upholland:
No, but the guidance that will go alongside the proposals will.
We have been talking to the organisations who have wanted to come
to talk to me and to the stakeholders more generally on freedom
of information and to the FOI users' group to say to them that
is the approach we wish to take and ask what the issues are that
we need to address within the guidance that will help those organisations
who feel ultimately hostile to the proposals to understand what
we are trying to do. For example, we have been asking members
of the press, who feel that this could be a way in which they
would not get as much information as possible, for their advice
on what the guidance ought to say about how best to engage with
them and the criteria that people should use, not least because
the system has to be absolutely transparent in order that those
who need to appeal or wish to appeal can do so in a way that the
Information Commissioner will be able to look at very quickly
against a robust and open process.
Q64 Chairman: You are saying "Please
give us a machine gun; we are not really going to use it but it
will enable us to persuade various people to adopt a more constructive
approach".
Baroness Ashton of Upholland:
It is not a machine gun. I am not a great one for analogies to
do with weaponry because I am no good at it and never get it right.
It is about having a backstop and it is important that when you
look at a system and you have 5%/45%, so 5% requests taking 45%
of the time, and then you start to unpick what is actually happening
... In a sense forget central government departments for a minute,
let us think about front-line organisations, where the success
of FOI for me ultimately lies in what information can be available
to citizens who are looking for information from public bodies,
then you have to consider what could make a difference and where
relations are successfully concluded between the requester and
the requestee that is all to the good and absolutely not where
we wish to go. We want to make sure that where possible organisations
do conclude those relations, but there is no onus on the requester
to do that at all. Many do because they are completely reasonable;
not everyone does and we do not want these requests to be turned
down and the bodies themselves do not want to turn them down,
they just need to find a way of doing it where they possibly can.
Ultimately, if you cannot find a way through it and where there
are clearly huge pressures on organisations, then we need to find
a backstop that will enable them to do it. As you know from your
years in Parliament, the problem with anything legislative and
regulatory is that you are dealing with the backstops and the
extremes and not dealing in what you put forward to Parliament
necessarily with all the things that go alongside it. That is
where the guidance has been very important. Let me just add one
other thing which is that we have also been very clear with everyone
I have met that this is the problem we are trying to solve. People
have understood that there is an issue here and if there are alternative
ways of solving it, we are open to listening to what those alternative
ways of solving it are.
Q65 Dr Whitehead: In terms of overall
cost reduction and the other factors that went into how you decided
to go forward in the way that you did, would you describe it as
a feeling rather than any particular scientifically derived notion
of where things were going? For example, when you published the
partial regulatory impact assessment, the first consultation,
it said in the document " ... it is impossible to quantify"
the costs to the public at large of the proposed changes. Then
in the same assessment, you came to the conclusion "The Government
believes that the benefits of introducing the proposed changes
would outweigh the costs". How did you reach that conclusion,
if you did not know what the costs were likely to be?
Baroness Ashton of Upholland:
This comes back to my point about the issue and the nature of
the issue that is being described. I just go back to Frontier
Economics. I gave three of the four aspects that they looked at.
The fourth is of course to alter the limit from £600 down
and we have not done that. You can address an issue which is to
do with the use of people's time in a number of ways. You could
do it straightforwardly by saying that if the cost of people's
time is X million pounds, you simply put another X million pounds
into the pot. The trouble is that it is not time on its own; it
is the expertise that is then lost to the organisation while people
are diverted into other work. You have to look, as we did, at
the options that were available to us. We could have gone for
a fixed fee option which would reduce the number of FOI requests
quite significantly, but if you simply do that, then the people
who are least likely to put in FOI requests will be the ordinary
citizens whom we are keen to encourage and lots of bodies would
find that acceptable and would be able to continue making FOI
requests but, for me, we would have lost something pretty fundamental
about the Act. We did not want to reduce the limits so we looked
at how to describe what is the use of someone's time who is a
professional and the ways in which you could try to tackle that
in a cost benefit analysis way. It is not about feelings in the
touchy-feely sense, it is about saying it is quite difficult to
quantify in financial terms precisely what is happening because
you cannot simply say that if this person is taken off this job
and is doing that, it costs X. What you are not able to quantify
is the expertise that you lose on the way.
Q66 Dr Whitehead: So you quantified,
or tried to quantify that expertise and the work that is involved
in that, which perhaps is outside the strict terms of pounds and
pence. What you have not done, although you did in your review
report state that there would be potentially a substantial increase
in requests for internal review and appeals to the Information
Commissioner, with a consequent subsequent increase in costs,
is you have not factored that into your overall analysis, have
you? You did not take any account of those additional costs. The
Information Commissioner told us he thought he would need about
an additional £1 million to take account of what were real
additional costs to him as a result of changes in how the regime
would work. Is that not then transferring one unquantifiable amount
of concern and money to another unquantifiable area of concern?
Baroness Ashton of Upholland:
The Information Commissioner makes his assumptions of course based
on his experience and he is also hopeful, and with good reason,
that the number of appeals will drop in any event; so there is
a see-saw effect in a sense in any change that is made. One would
anticipate, when you make a change around FOI, that there would
be an increase potentially in appeals to begin with. The expertise
in the Information Commissioner's Office, which we have seen grow,
enables him to deal with things more expediently and in a sense
the precedent that they already have helps you to balance that
back and of course organisations themselves get better at that.
I am not going to pretend that we would not expect to see a change,
nor would I expect to see that change continue indefinitely. I
have been balanced by a reduction in appeals more generally or
indeed itself being reduced but again, if you look at what the
particular problem that we are trying to deal with is, you are
back to the issue of real individuals and a concern that they
have about the amount of time that they have to spend. That is
a quantifiable cost in terms of their income and the costs that
we have around those individuals; hard to quantify in terms of
expertise. Again, looking at what the costs would be in appeals,
based on experience we can see there would be, in a sense, certainly
in the short term, an increase. However, the balance is not just
a purely financial one: the balance is between enabling people
to do their front-line jobs and the cost of the appeals that there
could be in the short term but not in the long term.
Q67 Dr Whitehead: You mentioned the
45% of the time taken by 5% of the enquiries. Would it not have
been possible to introduce a different charging regime, for example,
for those enquiries and therefore at least go some way towards
recompensing those organisations that had that additional work
so that they could make additional arrangements to deal with it
rather than simply put the boom down on that kind of request in
the first place.
Baroness Ashton of Upholland:
Again, that is a suggestion which fits into what I have asked
people to do, just to give me the alternative proposition as to
how to solve this. My immediate difficulty with that proposal
though is that individuals asking for information may genuinely
have a need to have quite a lot of information. It could be an
individual concerned to get records or details or information
about their local services because they directly affect them.
That individual may not have much money, that individual may be
deterred from asking a legitimate question because cost would
be important to them; for larger organisations that would not
be a deterrent in the same way. I am always mindful that we have
had a number of discussions about the possibility of just increasing
having fixed fees or having commercial organisations pay fees
and so on. We have always been requester-blind and that requires
a change in thinking and I do not want to do anything that means
ordinary citizens are deterred or prevented from getting information.
This for me is a better solution; it does not mean I have ruled
out all other solutions but thus far it feels like a better solution
to a problem than having individuals paying more directly.
Q68 David Howarth: The point I was
trying to come back to is the question of this method of proceeding.
Does it not leave out, in the initial stage, the benefit to the
public of having freedom of information? The way you are doing
it is that you are talking about quantifiable costs and at the
end you are coming to some subjective judgment about whether the
costs measure up to the benefits to the public and you are saying
you do not want to go that far. You are not feeding in the benefits
to the public of having FOI available in the first place and does
that not give the general impression that the Government are unsympathetic
to the overall principle of FOI, the benefit of FOI to the public
rather than to the Government?
Baroness Ashton of Upholland:
Of course we introduced the Act because we recognised the benefit
to the public and there is no doubt in my mind that if you want
to have better government you need freedom of information. Unless
people are able to challenge and question and get information
then, first of all, decision-making is not of the highest quality
and, secondly, it is very important that public servants know
what it is the public are interested in and they are able to see
and give out that information freely and it is all positive in
my view. It is not right for me to be making a decision about
an individual request at any point being in the public interest.
What I might see from my perspective as in public interest may
be different from the requester and that is absolutely right.
The generality of FOI being in the public interest, absolutely;
as much information as possible in the public domain, yes, please.
That is about proactive release and, as you know I have said this
many, many times, as much as anything it is absolutely critical
that we get as much information as a matter of course going out.
However, within that regime we have to look at whether you have
areas which are causing difficulty and the difficulty that I am
seeking to solve is where I am not convinced that the public services
that are being provided, which we are paying for as taxpayers,
to put it in financial terms, but which are essential, are always
best served if somebody is unable to do their job. Now, I have
indicated that the way we really want to approach this within
the guidance is to enable requesters and requestees to come to
agreements about how things can be done. However, if you do have
an imbalance in the system, it could be argued that the public
interest more generally—and we could spend a great deal
of time discussing this—is not always best served if somebody
in the Health Service or the Police Service is not able to do
their job. I am trying to balance that and I am trying to do it
in a way that means it is not my decision that this particular
request is in the public interest or not. Rather I am saying here
are requests, whatever they are, from whomever they are, that
by their nature, because they are large requests, in the sense
that they either require huge numbers of pieces of information
to be read or considered, need to be thought of in a slightly
different way. That means: can we find a way through this, can
you, as a public authority, demonstrate that you have tried to
find a way to deliver this properly and appropriately? We are
not talking about trying to persuade people these are vexatious,
because they are not and where that is absolutely impossible,
we should be able to say that actually on balance we should be
able to refuse this on the grounds that individuals will have
to spend—and this does happen—30 or 40 hours of time
doing this request rather than doing the job that they are paid
for.
Q69 David Howarth: Is it not an unfortunate
coincidence that affects the public view of Government's attitude
towards freedom of information in general, that at the same time
as these proposals are coming through, there is a bill going through
the Commons to restrict the application of freedom of information
to the House of Commons and the House of Lords? It would help
the Government's position, would it not, for the Government to
come out against that bill and save me having to spend yet another
Friday in the chamber of the House of Commons?
Baroness Ashton of Upholland:
The Government have considered their position. Those members of
the Committee who heard the Lord Chancellor on the radio this
morning will know that the Government's position is to be neutral.
We have three choices with private Member's bill, as you know:
we can oppose them and we do where there are matters of policy
with which the Government take a view that it is appropriate for
the Government to disagree or where, for example, the policy is
being dealt with in an alternative way; we support them, for example
as I am doing in the private Member's bill in the House of Lords
from Lord Lester of Herne Hill on forced marriages, where the
Government have effectively, with his total support, rewritten
the bill to make it part of the Family Law Act and is positively
promoting the bill as a private Member's bill through the House
of Lords; or Government remain neutral. The decision on the freedom
of information, the David Maclean bill, is that we should be neutral.
Parliament has to make its own mind up what it wishes to do on
this. You are right to say that in doing so politicians have to
think about what else Government are doing, their views on what
they are seeking to achieve, perception and so on. That is for
politicians to do and it is the Government's position to stay
neutral.
Q70 David Howarth: I should explain
that I acted as a teller for the opponents of the bill on Friday
so I got to see who was voting. That claim of neutrality would
be far more credible were it not for the fact that many of the
people going through the lobbies in favour of the bill were government
whips. Is it the habit of government whips to act in a neutral
way towards the Government?
Baroness Ashton of Upholland:
When it comes to a private Member's bill, they are acting as MPs.
It is their decision which way they vote.
Q71 Bob Neill: Can you help me? You
said very clearly that these new regulations are not about frivolous
and vexatious requests, right? They are nothing to do with it.
I think you said that these are particularly designed to deal
with legitimate requests which will require a huge amount of work.
That is why you are changing regulations: to capture that type
of case for all the reasons you have set out.
Baroness Ashton of Upholland:
Yes.
Q72 Bob Neill: Why do you need that?
Why do you need new regulations, because you have the existing
fees regulations? They allow officials to set a maximum limit
on the time spent locating and retrieving information. Why do
you need these extra regulations?
Baroness Ashton of Upholland:
Under the regulations they do not allow for reading time or consideration
time, those are not included, therefore at the present time officials
of any public body cannot refuse to do those things. The only
way of addressing that specific point would be through the regulations
and we do not want, as you would expect, there to be any leeway
on what the regulations say; we want people to follow the regulations.
So we need to deal with this in this way, if that is the way we
choose to go.
Q73 Bob Neill: Certainly those other
government spokesmen, who, like yourself, have talked about frivolous
and vexatious matters, have really missed the point of this.
Baroness Ashton of Upholland:
I am grateful to you for raising this again but it is very important
that we do not assume that people who make quite voluminous requests
are necessarily vexatious. The example I gave was of the Treasury
and there are examples from chief police officers and indeed the
NHS where there have been quite large requests to do with consultations
around health services across the country, which is of itself
a very interesting set of information but requires a huge amount
of work to get it together. We are trying very, very hard to make
it clear that we do not want people refusing requests; we want
them to do the requests, but we have also to be able to tackle
particular problems.
Q74 Bob Neill: I can understand your
point that you do not want to shut out the ordinary member of
the public who might have an issue which is of particular importance
to them, but is there not the risk that many of these particular
complex and time-consuming cases are the ones which are likely
to raise issues of very great broad public importance? Those are
the ones that it will be the easiest now for officials to refuse.
Baroness Ashton of Upholland:
First of all, the requester can refine their request. There is
nothing to stop a requester actually refining the request in a
way that will deal with the problem and that is what we are seeking
to do. If, by producing the guidance, we enable people to have
that dialogue with that objective in mind and to have to demonstrate
that they sought to do that, which is important as well, then
we hope that we will put, what is often a voluntary process that
is working very well in some places, much more to be part of the
process that people use in order to try to get there. It may well
be the case, though I have to say that I suspect some of the most
interesting requests that one might look at are public interest
requests where there have been very direct question for very particular
things to be revealed, but it might well be that there are broader
questions. The case in point of the academic with the work that
is going on with the Treasury may well be the most definitive
book on economic policy we have ever had. I hope it is. It is
not about that, it is about trying to make sure, both with the
guidance that goes out and then with the backstop stop, that we
balance this problem of why public servants are employed and what
the job we want them to do is in the main and how we make sure
that we are giving as much information and as appropriate as we
possibly can and for a lot of issues to do with freedom of information
proactive release is actually the way we want to go in any event.
Q75 Bob Neill: Understood, but in
terms of refinement, refining the request, a bit difficult if
somebody comes along and says they want access to the information
on the legal advice on the war in Iraq. It would probably be very
complicated and time-consuming to retrieve that information. It
is of massive public importance but it is very direct, you cannot
refine it much more. Officials have been given a very good tool
to refuse anything like that now, have they not?
Baroness Ashton of Upholland:
If I take an alternative example, you could have a request for
all of the information to do with the building and development
of an NHS trust in a particular part of the country, which may
be relevant for somebody who is doing an academic study or a history
or a commercial outlet or whatever. It is quite possible with
most requests to find ways of refining them, not least by asking
for particular pieces of information. We make it quite difficult
in a sense for public authorities to have that conversation at
the moment. We want them to have the conversation where that is
appropriate because we are trying to make the requester in a sense
be the person who drives this process and be able to ask for information
they want. Enabling people in these circumstances to have that
dialogue is quite important. As a general rule we want to be requester-blind,
we want to answer the question that is being asked and not try
to redefine the question for all the reasons where you would reasonably
say that could have an impact on the quality of the information
that is being released. It is very particular circumstances, very
particular guidance. This is what you do, this is how you get
the requester to refine it where possible. As I say, we are out
to consultation so we will see what happens by 21 June on the
consultation which is produced.
Q76 Bob Neill: I am just troubled.
You say it is very specific circumstances and very specific instances,
but the Information Commissioner gave evidence to us that the
effect of the proposals " ... will be to arrest the flow
into the public domain of a very significant amount of information
of genuine public interest". That is more than just dealing
with specific circumstances and refinements. It is a major change,
is it not?
Baroness Ashton of Upholland:
The Information Commissioner has, as ever, been extraordinarily
helpful. He speaks his mind. He has been very clear about how
he feels about this. He, of course, is essential to us in terms
of thinking through how we would make this work. He has given
his initial view to the Committee; he has certainly given his
initial views to me and he is of course a member of the Freedom
of Information Users' Group and they have all been pretty clear
on their views as well. We have produced a consultation on the
options. We have now started to talk about two things: one is,
if this is not the way of tackling this, what is? Thus far the
solutions that people have offered me capture other groups in
a way that I am not comfortable with, like fixed fees or like
commercial organisations. What is the definition of a commercial
organisation, if you are requester-blind? Someone just sends you
an email from their home email and it would be very difficult
to judge. It does not mean that we would not look at it, but there
are issues about that. Working then with organisations to address
the genuine concern that they have that says that if you do it,
you have to do it in a way that means it is not a method by which
legitimate requests could fail to be granted to people, where
information is prevented, and of course it always has to go alongside
making people give out as much information as possible without
having to be asked for it. In that context, we are just in discussion
with the National Archives to look at whether we can create an
archive of all of the freedom of information material that people
can then access. It is early days, that is hot of the press, it
is the first time that has been said, but that could be incredibly
valuable as an extra resource.
Q77 Bob Neill: You have been very
frank, I am grateful to you. From what you have told us, it is
clear that there are important considerations here. Certainly
on any view, on your own view I am sure, it goes well beyond merely
adjusting the payment arrangements. It is much bigger than that,
is it not?
Baroness Ashton of Upholland:
I think you are quoting the Lord Chancellor's speech, are you
not?
Q78 Bob Neill: I am quoting what
are said to be the Lord Chancellor's words, which surprise me,
given your evidence. It may be that you are going to tell us that
he was slightly inaccurately reported. I do not know.
Baroness Ashton of Upholland:
No, the Lord Chancellor was making an important speech—I
think it was a Lord Williams of Mostyn's Memorial Lecture, a truly
great man I have to say. I read bits of the speech as well, as
you would expect me to do. The Lord Chancellor was making the
point quite clearly that we are not seeking to try to change this
regime; we are seeking to tackle this particular issue. What he
was not able to do in his speech of course was go through the
detail as I have sought to do—I am not sure how successfully—in
order to give information about how it would work and what would
go alongside it, so that you were actually able to create a system
where we would just get that balance right between using people's
time effectively around freedom of information and using people's
time effectively for the job they have to do.
Q79 David Howarth: May I raise with
you the point that a number of witnesses have put to us about
the possibility of public authorities manipulating cost estimates
as a way of pushing requests over the limit, for example the possibility
of saying that a very large number of council officials need to
think about this request or a very large number of outside organisations
need to be consulted and if you charge them out at the appropriate
hourly rate, you soon get above the limit. What provision is there
in the regulations to stop that sort of thing happening, that
sort of abuse?
Baroness Ashton of Upholland:
First of all, the specific way in which we tackle that, though
I have to say we are not seeking at all to give anybody an excuse
not to provide information that is legitimate, is that we have
to be very careful and clear about the guidance that we give and
in that guidance will be clarity about how they approach the question
of consideration, what has to be read, who needs to read it and
so on. It is possible that you could have, not a particularly
large request but a request which requires you to consult 26 governments
across the planet and that could take quite an inordinate amount
of time on the one hand. You would have to be clear that you could
demonstrate that that is what you had to do. Those may take five
minutes each, but they may take weeks. I merely give the example.
Equally, there are circumstances where it is one official who
simply has to read their way through much of the material that
is available. In every case, they would have, under the guidance
we produced, to be able to demonstrate exactly why they believe
that this request should be turned down, alongside having to demonstrate
that they have sought to try to refine it or alter it with the
person concerned by getting to the nub of what the individual
or the organisation is after in a way that does not bring you
into this regime at all, which would be new within the Act.
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