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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 415-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
FREEDOM OF INFORMATION FOLLOW UP
Tuesday 20 March 2007 ROB EVANS and TIM JONES RICHARD THOMAS, GRAHAM SMITH and JANE DURKIN Evidence heard in Public Questions 1 - 50
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Tuesday 20 March 2007 Members present Mr Alan Beith, in the Chair David Howarth Mr Piara S Khabra Bob Neill Mr Andrew Tyrie Keith Vaz Dr Alan Whitehead Jeremy Wright ________________ Witnesses: Rob Evans, The Guardian, and Tim Jones, World Development Movement, gave evidence Q1 Chairman: Mr Evans and Mr Jones, welcome. We are very glad to have you helping us this afternoon. Although this inquiry, on the face of it, appears to be about charges and fees, as you will both realise, that is not the reality at all. What we are discussing is what would happen if the Government placed certain restrictions on the operation of the Freedom of Information Act, restrictions both as to the cost figure above which they would not provide the information at all - not charge you for it, they simply would not provide it - and as to whether they will accept repeated requests from the same individual or organisation and whether the Government have any justification in taking these steps. I wonder if you might help us to start with by each giving us some illustration of how you have used the legislation and the public benefit you think has resulted from it? Tim Jones: From the World Development Movement's point of view, we are a campaigning organisation that seeks to hold the Government to account on issues such as trade justice, debt cancellation, climate change and how it uses its aid round the world. I think the most relevant way in which we have used the Freedom of Information Act is in relation to the Department for International Development, where we have been particularly trying to monitor how they are spending their aid money in relation to water provision around the world. I think over the last two years we have submitted about 28 freedom of information requests on this subject, which tends to be asking for details on specific projects or programmes that they are funding or contracts which they have let out to certain private companies. That worked out at about three requests a month. On the amalgamation of the number of requests that you can put in, we think we would be severely restricted in how many requests we could put in and far less than we would otherwise have done. Obviously, when we are asking for this information on the projects that they are funding, we are doing this because we do not know what they are up to. I would be quite concerned already about how DFID publish the projects and programmes around the world that they fund, and because we do not know already, we have to put in lots of requests where we think there might be something happening that we are interested in. So, we do not always get things out of it that we would use publicly but sometimes we do. A most recent example is in Guyana where, over the last few years since 1999, DFID have been funding a water privatisation process which has recently involved paying the fees for Seven Trent Water International, a British company, to run the water system in Guyana. We were recently given access to an evaluation of that contract, which showed that they had been missing five out seven targets and actually were in the process of the contract being terminated. This involved £13 million of Department for International Development money. Q2 Chairman: How much - 13 or 30? Tim Jones: Thirteen million pounds over the course of last five years, I think, in Guyana, and involved £1.8 million going to Seven Trent Water International. Our valued judgment would be that this has been a big misallocation of aid. The public interest case is that this is something that the public should know about, but we would not know about this evaluation if it was not for the Freedom of Information Act and we would not be able to access these kinds of things and, because we have to put in so many different request to initially get this information, we have less chance of hitting it. Q3 Chairman: Could not the Government say that you engaged for a legitimate purpose but, nevertheless, in an expensive fishing expedition calling for all sorts of information which did not reveal anything like that? Tim Jones: I think that if they did that would be a very counter-productive argument on their part, because this is UK taxpayers' money. At the moment, if they were really concerned about looking at how this money was spent, they could be far more open in what they reveal already. My comparison is with the World Bank, who on their website publish all project documents for every project that they fund round the world, and DFID just do not have that approach at all. They leave it up to organisations like to us do this investigation, and that results in us having to use the scatter gun approach. From their point of view, it would be far more effective for the Government to be more proactive to begin with, but given that they are not, I think this is not a costly exercise because it is the only way to hold them to account on things that people are meant to be most concerned about - how UK aid money is being spent around the world - actually finding out: what are they spending it on, what are the programmes that they are funding? Q4 Chairman: Mr Evans, would you like to give us some illustration? Rob Evans: How we have been using the Act? Q5 Chairman: Yes. Rob Evans: Yes. I sent a submission into the Committee which showed 50 stories which had appeared in The Guardian basically using the Act. I hope you have got it there. I did not write this list out to boast about what we were doing but to show that these are responsible stories, examples of how the media has been using the Act responsibly, and these are stories which, I think, are in the public interest. This is the type of stuff that the public ought to know about in order to enhance democracy. For example, the third story on the list is a list of the biggest carbon dioxide polluters in the UK. That was information we did not have before, and I think that is a very good example of why this Act is a success. Q6 Chairman: Do you have any more of those, just to remind the members, if they are particularly effective? Rob Evans: There is another one which I think is useful because it highlights what could happen if these regulations come into force. We have a story here which is about the first time that the Government actually released the amount of EU farming subsidy that each farmer in Britain receives. This had been a huge secret and, back in 2005, for the first time, the Government actually released this data for about 100,000 farmers in Britain, and we wrote a story showing that the Queen and Prince Charles and other land owners, basically the big land owners, got a large amount of money. You could say, "So what", but I think the point about that is that it is, hopefully, informing the public that this is what is going on and they can make their own judgment. Our worry with the regulations is that some of these stories are what I would call quite politically contentious or complex, and the more that the information is complex or contentious the more time the ministers will take over deciding whether or not to release it. Basically, taking the story about the EU subsidies, it did take quite a long time for the Government to decide whether or not to release that information, and I think it was the right decision but, I fear, with these new regulations, it could be just the type of thing that they would refuse to release. Q7 Chairman: Have you had occasion to use the appeals process at all? Rob Evans: Yes, I have. Q8 Chairman: Have you completed it? Have you been successful in using it? Rob Evans: What do you mean? Q9 Chairman: To appeal against a government refusal. Rob Evans: Yes, I regularly appeal against the Government, and sometimes you win and sometimes you do not. Q10 Chairman: Have you got many matters still outstanding? Rob Evans: Yes, that is the problem that we run into. Sometimes they take a long time to decide whether or not to release the information on appeal. Q11 Chairman: Does the WDM use the appeals process? Tim Jones: We have not appealed beyond an internal appeal on anything so far. I am concerned about this, taking the reading and consideration into account. I think we said in our submission that of the 28 requests, ten have been considered to have some exemption and had a public interest test applied to them, and often that is to do with international relations or, when asking for contractual things with companies, commercial confidentiality. Often they end up being given to us in part and we get the information in the end, but it can sometimes take four or five months for DFID to finally reach a decision to do that. We have never had one so far which we felt was worth the time and effort for us to appeal against when they have not released it. I think five of the 28 have been refused outright. Q12 Chairman: In general, the Act has worked for you, because you have been able to get most of the information you felt it right to get? Tim Jones: Yes, eventually. I think where we have not been able to is where we have not been able to be specific enough in our requests because we have not known enough about what they are up to. So, although there are problems in the news we had to hand out, we did not think it was worthwhile following an appeal process because we could see that they were justified under the terms of the Act not to release it, although we would have liked them to have done. Q13 Jeremy Wright: Can you help us with the number of requests that you make. Obviously, the practical effect of these regulations, if they are implemented, would be to reduce the number of times that you can make a request under the Act, and, if you are restricted to something like one every three months for a particular government agency, can you give us an idea of how many applications you normally make in an average three-month period, if there is such a thing, so that we can get a sense of how restrictive this will be for you? Tim Jones: As I say, with DFID as the main department for us - we have worked it out - it is 28 since January 2005, which is three a month. Obviously it does not work out that we have three every month, but we would have periods. At the moment I am waiting. I think I have got four requests in at the moment since the start of the year, two of which we are still waiting on DFID to get back to. If we were restricted in our use, we would just have to try and make judgments and say: "Which is the most important one?", and when something came up immediately, you might think, "We cannot put in a request now because we might want to save our one for this period for later." So it cuts to a third at least what we currently cut in, I think. Rob Evans: The Guardian in a year makes around, I would say, 250 requests in total. It depends. They are to all departments. It is difficult to judge how many we would be stopped from making. The problem would come if you were looking at a particular department. Often the value of freedom of information for journalists is that you are putting it together with other information that you are getting. You have to dig away sometimes at government departments. The most interesting information is often the most heavily concealed; so if you are pursuing a department over a particularly long period of time, that is when you would be hindered in particular. Q14 Jeremy Wright: Presumably, by definition, if you got a certain piece of information from a department, it might raise other questions to which you would also want to know the answer, so there would automatically be a second request? Rob Evans: Yes, exactly, you have to pursue them. I do not think it is the case that often---. I do not think we are in the position where Whitehall departments or government will give you everything that you want straightaway. I think the Act has been good and it has been a success in terms of opening up. We are on the road, are we not, and we have gone a certain way down the road towards openness. Q15 Jeremy Wright: Can I ask this, perhaps unfair, question, but in your judgment do you think there is an element of the Government not having anticipated what the effect of this Act was going to be in terms of the workload on the government departments in question? Rob Evans: They should have known. The thing is that the Act was passed in 2000 and was not introduced - it did not actually come into force until 2005. The reason given back in 2000 why it could not come into force within two or three years was: "We have got to have time to prepare." What were they doing during that five years? I think they have had ample time to prepare. Q16 Chairman: This Committee examined what they were doing and found that some of them were preparing very well and some of them were not. Rob Evans: Exactly. I think that was wasted time really. Q17 David Howarth: My question is similar to one of Mr Wright's. Is your experience similar to that of MPs asking parliamentary questions, that the answers you get might be characterised as minimal compliance and sometimes over-literal in the interpretation of the question? Is it your experience that you have to make repeated requests just to, effectively, make your first request in a way that the Government cannot misunderstand? Rob Evans: There are two points. One is that compliance is patchy. You get some departments who are good, others who are not. I think what is crucial here is the culture. If you have a department that wants to give out information properly when it is in the public interest, then, yes, you can work with that department and they give the information properly, but if you have got a department that does not want to give out the information, they will use any excuse or any exemption. You have got to fight against that to prove that they are being unjustified. So I think you are right, yes, sometimes you have to make several moves just to get your first request. Q18 David Howarth: And you suspect that if there were opportunities for manipulation of the new regulations, it would not be very surprising if they were used? Rob Evans: I would not be surprised at all. Tim Jones: I just want to add another example that we had on that where we requested the Secretary of State's public engagements for the year, and they kept on extending the public interest test on it. Obviously I made clear in the request that we acknowledged there would be security issues potentially just where they were really public engagements, and eventually, five months in, we were finally granted the request, after which time most of the public engagements on the list had already happened. I tried questioning the people in the Department for International Development about this: "Oh, they are very complex regulations" - you know. I have never been able to understand how it takes five months to adjudicate. That seems to me a waste of time. If they are spending five months making these adjudications, that is where the waste of money on their part is and not in terms of the requests that we are putting in. Q19 Chairman: Do you think that 35 million a year is too much for the cost of freedom of information? That is the Government's claimed figure and the supposed basis for their concern. Rob Evans: I do not, for two reasons. One is that £35 million is, I would say, quite a good price, if that is the right price. There are two points. One is that that figure is very small compared to the amount of money spent on the Central Office of Information, which is all about all the press officers, all public information films that the Government is putting out, whose budget is over 300 million, and that is information that the Government wants the public to know, but freedom of information is about the information that the public want to know, and I think it is a very good price. Secondly, I would surely hope that freedom of information would lead to better government and lead to cost savings in the long run. Tim Jones: Obviously that is, in the scale of things, a tiny amount of money and, in terms of what these regulations mean, I think it is more about £11 million they are talking about being saved, which is even smaller. Just talking from our own experience, the one case of Guyana, £13 million is probably more than the £11 million, and we would say that is £13 million that has been misspent, but then beyond that, if you consider this is from a department which is responsible for probably about 1% of government spending and one request by quite a small organisation relatively from us, it is clear that if you were able to gather together all the freedom of information requests that have been made and the knowledge that has been gained from them and the openness, you have saved far more than that amount of money. The step that has been taken with this legislation to try and make the governmental processes in the UK more transparent has been very valuable, and it would be a horrible mistake for that to slip back. Q20 Chairman: What is your response to the Lord Chancellor's claim, for which he gives some examples, that there are frivolous or silly but time-consuming requests - how many windows there are, or how many toilets there are in the department, or whatever it may be? Rob Evans: How many Ferrero Rocher chocolates were given us? Q21 Chairman: Yes. Rob Evans: I think, if you look at the bigger picture, the number of so-called frivolous requests are tiny. That is using a small number of requests to tarnish and write-off the whole of the Act. There may be a few, but the point here is that the Freedom of Information Act is really quite young and we are settling down. You may get a few silly requests, but the more that the public learn about the Act and how to use the Act, the better the working of the Act and the more people will put in focused requests, and that will not waste so much time. Q22 Chairman: Was there not a lady who inquired how many unmarried police officers there were in the local constabulary! Would you say the process can deal with that anyway? Rob Evans: I think so. I do not see it as an insuperable problem. Q23 Bob Neill: You made the point, both of you, about the need sometimes to go back because one question leads on to another question and you need more information. Can you give us any sense as to what percentage of the requests that you make trigger the need to go back for more because either they were minimal in terms of their compliance or because, very legitimately, what they have said raises yet another question in your mind? Tim Jones: I think the main kinds of requests like that tend to be when we have got a particular strategy of doing that, so when we would ask for a list of certain kinds of projects and then look through it and think: which are the most interesting ones? There was a case where we wanted to follow up on some evidence that we had that DFID were working alongside USAID on projects and, when they were doing that, that meant the aid money that DFID was contributing was tied to being spent on US companies. As you may know, DFID are not meant to tie their aid to be used by UK companies, but we thought it might be that some UK were being tied to US companies. So we initially put in the request for where they were working with USAID and then sought to establish which ones of these might be the cases where there is this tied aid going on? Where we have had follow up requests, it has tended to be in that kind of strategic way and I think that is how the Act was meant to be used. There is no way under the regulations at the moment to ask for all you want initially, so you have got to get lists in order to then pare it down to the cases that would be most interesting. Rob Evans: We do ask for an appeal on a large number of our requests, because we have come across quite a lot of instances of unjustified secrecy. The more times you appeal, the further you go, the better chance you have of getting the information. Q24 Bob Neill: That raises another point. How satisfied are you with the robustness and the fairness of the appeals procedure? Rob Evans: You mean the Information Commissioner. Q25 Bob Neill: Yes. Does that seem to work - some you win, some you lose? Rob Evans: Well, yes, it is a case of some you win - yes. The problem with the Information Commissioner is that it takes a long time to get results. Q26 Bob Neill: So that is your main concern? Rob Evans: Yes. Q27 Bob Neill: That was the only other point I was going to come to as regards that. We have heard the argument that the Lord Chancellor makes about the burden on politicians. What do you estimate to be the burden upon yourselves or your organisation in terms of the resource that you have to put into making and following up these requests? Is it five minutes first thing in the morning or is it a bit more resource than that? Tim Jones: We are an organisation that employs about 20 staff and I co-ordinate all our requests. It takes up a significant amount of my time, and a lot of the time I think that is probably why we have not followed up and appealed on some of these because I just do not have the time to think it through and there are other things to be done. Yes, putting percentages on it, ten, 20% of my time sometimes has been spent on trying to use the Act, but which I wish it could be more really. Q28 Chairman: I was struck by the point you made earlier. Effectively what you said was that you had to submit a more elaborate series of requests because the department was not going to answer the question that you really wanted answered. That sounds as though the Government's way of responding to requests makes the process more expensive. Is that so? Tim Jones: Initially when the Act came in, I went to training courses and had this concept that I could build up a relationship with the freedom of information people in order that I would just be able to phone them up and say, "This is what I really want. Can you get it for me?" That has not been my experience at all. When I have tried that, it has just been point blank: "Write it down. We will see what we can do." So there we have had to take a step back, and that equates with the US. We knew that there was no way---. If we asked for all the documents about all the cases where they were working with USAID, we would get back straight away: "It will cost too much money to find this." So we have to first try and get a list and then work out which ones look like they might be the most interesting. Q29 Chairman: Is there a question you could have produced there which, if the Government had been more willing, would have cut the amount of time and money that they were committed to and would have achieved your purpose? Tim Jones: Yes, the question would have been: "Where are you working with USAID where UK aid might be being tied to the US by US companies?" Q30 Chairman: A perfectly straightforward question. Tim Jones: I think initially in that case I might have tried that one, and they just said, "Our filing system cannot cope with that. We do not know. It would take an investigation by us", and I have got lots of other problems with learning about how the DFID filing system works. I am worried about how they keep track of things! There was no willingness on their part, and, of course, obviously it is a politically contentious question because this has been a major thing that the Government has proposed, how they de-link aid money from being tied to companies, and so this idea that there might still be being tied aid going on was a very political question and so they would not have a political reason to want to investigate it. Chairman: Mr Jones, Mr Evans, thank you very much indeed. Witnesses: Richard Thomas, Information Commissioner, Graham Smith, Deputy Information Commissioner, and Jane Durkin, Assistant Information Commissioner, gave evidence.
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 genuine 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, but 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 Committees, 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 of a national press, but so often you 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 judgment, 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. 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 judgments. 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 a leech, 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 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. 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, with in the first two months of this year well over 60 formal decision notices 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 of our 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. |