To be published as HC 1849-iii

House of COMMONS



Justice Committee

post-legislative scrutiny of

the freedom of information Act 2000

Wednesday 14 March 2012

Christopher Graham and Graham Smith

Evidence heard in Public Questions 198 - 243



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Oral Evidence

Taken before the Justice Committee

on Wednesday 14 March 2012

Members present:

Sir Alan Beith (Chair)

Mr Robert Buckland

Jeremy Corbyn

Nick de Bois

Chris Evans

Ben Gummer

Mr Elfyn Llwyd

Elizabeth Truss


Examination of Witnesses

Witnesses: Christopher Graham, Information Commissioner, and Graham Smith, Deputy Information Commissioner and Director of Freedom of Information, Information Commissioner’s Office, gave evidence.

Chair: I welcome Christopher Graham, Information Commissioner, and Graham Smith, Deputy Information Commissioner. I have discovered that there are two Mr Smiths in prominent positions in the Information Commissioner’s Office.

Graham Smith: There are indeed. You have to be called either Graham or Smith-or both.

Chair: I have to declare an interest as a member of the court of Newcastle university, because an issue has arisen in the course of these hearings about universities and research, and I have a relevant interest in that respect. I ask Ben Gummer to open the questions.

Q198 Ben Gummer: Thank you, Sir Alan. In your experience so far, have you ever encountered an example of where the Freedom of Information Act has had a chilling effect on decision making within public bodies?

Christopher Graham: It is in the nature of a chilling effect that we would not get to know about it; we only get to see what is in the evidence trail. Those who argue that the Freedom of Information Act has had a chilling effect say that it means that nothing gets written down, but is all done by post-it notes and sofa discussions. Frankly, I think that this concern is greatly overdone. To some extent it is self-fulfilling, because if senior figures in Government and Whitehall say that there is no hiding place under the Act-that is simply not true, as we will explain, because of the various exemptions that are available-it suggests to more junior staff that it would be unwise to keep a proper record and that it is acceptable to use a Gmail account. There is a certain element of, "The sky is falling, the sky is falling", which is greatly overdone and can actually be very damaging if the view gets abroad that the Freedom of Information Act is somehow chilling sensible discussion and sensible government.

Q199 Ben Gummer: To be fair, there are two aspects to this. The first is that information, conversations and minutes are not recorded. That is one side of it, but the other, which is potentially more damaging, is that officials do not have open and frank discussions with Ministers that are recorded, for fear that that recorded information is released.

Christopher Graham: It would be absolutely disgraceful, would it not, if officials were not giving their best advice because of what might happen under the Freedom of Information Act?

Q200 Ben Gummer: It might well be disgraceful, but I am asking whether you have any experience of anyone saying that that has happened.

Christopher Graham: Perhaps I can ask my colleague, Graham Smith, the Deputy Information Commissioner, to comment on that, as he has longer experience of cases than I have.

Graham Smith: The best evidence on the subject is that referred to by the Constitution Unit of University College London in one of your earlier sessions. We do not have experience of investigating cases and finding that there is a shortage of evidence, in that, for instance, something that we would expect to find is not there. We do not have any experience of that. We have some anecdotal stories from people in Government Departments, who say that less is being recorded now, but we do not have any anecdotal evidence of people saying that full and frank advice is not being given. To the extent that there may be a chilling effect, in actuality it is more about recording rather than giving advice. As to how extensive it is, I do not think that there is any evidence to suggest that it is very extensive, and I think that the most thorough work on that has been that done by UCL.

Christopher Graham: UCL also pointed out that it is really a function of modern communications-the internet and the general fast-moving nature of government; and, of course, sofa government well predated the introduction of the Freedom of Information Act.

Graham Smith: UCL also said, to the extent that there may be a chilling effect, that it is not necessarily down to FOI-either alone or at all.

Q201 Ben Gummer: Lord O’Donnell, who, after all, ran the civil service for quite a long time, claims precisely the opposite.

Christopher Graham: I am sure that we have the greatest respect for Lord O’Donnell, or Sir Gus, as we knew him. Of course, some of the most difficult freedom of information cases have involved the Cabinet Office, and difficult judgments have to be made. Since he has retired, he has been making the case to which I alluded. When he was writing Cabinet minutes, he says that he never quite knew whether or not he was writing for publication, yet the evidence shows time and time again that the Information Commissioner and the Information Tribunal have supported the principle that there should be a safe space for the development of policy. Cabinet minutes are not routinely outed. The only ones you get to hear about are the ones where the Information Commissioner or the Information Tribunal have ruled in favour of publication. Nobody is interested in the vast majority of cases, when we look at the balance of interests and say, "No; we think that the principle of collective Cabinet responsibility trumps any other argument."

Q202 Ben Gummer: Lord O’Donnell went further than that. He said that it led to oral government. That might have been a function of the previous Administration, but if you have warnings being given to Ministers orally or difficult conversations with Ministers rather than things being laid down on paper and properly minuted in committee-I am not saying that this was happening on a consistent basis-then it leads to bad government.

I move the conversation quickly on to the risk register, which is a good example. If Departments are required routinely to publish risk registers-after all, Lord O’Donnell and everyone in this Government are, as far as I know, in favour of the Freedom of Information Act-the question is where you draw the line. Departments will not draw up full risk registers because they know that doomsday scenarios, which have to be considered, will be published and become part of public discourse in a way that completely tilts the balance of debate.

Christopher Graham: It is disgraceful if civil servants are not drawing up proper risk registers. You say that it is a question of where you draw the line, but the line is overwhelmingly drawn in favour of protection, of the development of policy and communications with Ministers and so on. Where the public interest test has to be applied and the balance of public interest is in favour of publication, on those occasions the documentation should be produced and should be explained.

You mentioned the NHS risk register. Our decision went off to the Information Tribunal, and the tribunal concluded that one of the risk registers-the transitional risk register-should be published. We wait to see the arguments in support of the commissioner’s decision. On the other risk register that we thought ought to be published, the tribunal said no, it should not be published, and we are interested to see the argument there. The whole thing has become a political football.

Ben Gummer: Precisely.

Christopher Graham: May I just finish the point? A risk register is the proper identification of the various issues that need to be managed and mitigated. One would assume that the risk register, when published, would show the mitigation arrangements that were in place. It will be the state of the risk register at the time the request was made. We were told that it was very out of date; Ministers would of course explain that, but just because it has the word "risk" in it does not mean that it is terribly risky and cannot possibly be published.

I maintain that the Freedom of Information Act as drafted-and the way it has been implemented by public authorities, the Information Commissioner and the tribunal-shows that time and again the responsible view is taken that material should not be published. I cannot think of many risk registers that have been published on our watch. I do not know whether Graham would like to comment on that.

Q203 Ben Gummer: You make the point that it has become a political football, and that is precisely the issue. What concerns me slightly is that the Information Commissioner and his office see the world as they would like it to be-they want to see it perfected-and not as it is. Frankly, the release of this information might be right within the compass of the law and be disseminated in the way that you would like, but it will skew debate to the point where public discourse becomes unbalanced. You are operating in the realms of-

Christopher Graham: I leave the politics to you. You say that the debate is skewed. The debate will rage, and parliamentarians on each side will explain and gloss or whatever, but the risk register is simply whatever the risk register was at the time it was requested. I am sure that politicians on both sides will be able either to attack or explain, but at the moment you are getting all the disadvantages of the incoming, but the Government are not actually saying, "Well, here it is."

Q204 Chair: May I take you to another issue that has assumed some political salience? It is whether alternative channels are being used-private e-mails and the deletion of e-mails-presumably because of the belief that chilling effects might be happening. Is that something that you are in a position to monitor effectively?

Christopher Graham: Mr Gummer referred to this as being a problem for the last Administration, but there have been suggestions that it is going on now. We are investigating a number of section 50 complaints about material that the complainant has reason to believe exists but that the relevant Department says does not exist. We will follow the evidence and see where it takes us.

We issued very clear guidance at the back end of last year, making it clear that official business comes under the purview of the Freedom of Information Act and that it certainly must be considered for possible release even if it exists on individuals’ Gmail accounts. The guidance is very clear, and, if the practice continues of enthusiastic special advisers communicating through a back channel, it could become quite serious. I want Whitehall to take note of that guidance, as I am sure it has done. There should be no confusion; it is absolutely clear what the law is and it should not be a surprise to have it restated by the commissioner. Those involved in administration know what they need to do.

Q205 Chair: Is it a disciplinary issue for public service?

Christopher Graham: It is certainly a good practice issue for the public service. If it became clear that the Freedom of Information Act was being frustrated because information held in private e-mail accounts about official Government business was not being properly considered for release under the Act-I am not saying that it is not being released but that it is not being considered for release-it begins to look like a section 77 breach, and that is obstruction, which is a criminal offence.

Q206 Nick de Bois: If there is evidence that people are using their private e-mails, does it not undermine your suggestion that there is no chilling effect?

Christopher Graham: No. The point that I was making was that the contribution of senior mandarins in asserting that there is no hiding place is driving this sort of bad behaviour.

Q207 Nick de Bois: That is missing the point.

Christopher Graham: The culmination of our guidance, which makes it absolutely clear that such material, if it relates to Government business, should be considered, and the fact that the run of decisions by the commissioner and the tribunal support safe space for ministerial communications and the development of policy and so on, means that this nonsense should not be going on.

Q208 Nick de Bois: You might regard it as nonsense, but does it or does it not undermine your case that there is a chilling effect if people are using their own e-mail accounts?

Christopher Graham: My case is that there is not a chilling effect. I say that there is not a chilling effect.

Q209 Nick de Bois: Yes, I know, but, if you find evidence that people are using their private e-mail accounts, does it not undermine your point? I cannot think of any other reason why they would do it.

Christopher Graham: It is very exciting being a special adviser. If it gets abroad that special advisers carry on their business by some conspiratorial back channel, fine, but that will soon stop if there is a section 77 offence. People should just pay attention to the fact that the Information Commissioner is not routinely outing material under the Freedom of Information Act.

Q210 Chair: Turning to your more general conclusions, you say in your written submission that the objectives of the Freedom of Information Act are "largely being achieved". What is your evidence for that conclusion?

Christopher Graham: Would you like to speak on this, Graham?

Graham Smith: It is a very popular right, which is being exercised by members of the public. Despite the concerns expressed, rightly or wrongly, about commercial use and use by journalists, the majority of requests are made by ordinary citizens, and they are finding out information that would otherwise have been kept secret. They are finding out about things that affect their daily lives, such as the sale of playing fields or NHS charges in their local hospitals, and the revenue being generated by initiatives like that or by speed cameras. This information would not otherwise have been disclosed.

The Constitution Unit has done some research on achieving the Act’s objectives. The first issue that it faced was defining what those objectives were. The Act does not have an objectives clause. When the Bill was first introduced, the initial consultation back in 1999 spoke about freedom of information being one of a suite of measures aimed at modernising government and greater engagement of the citizen with the political agenda. There was concern at the time about a democratic deficit and so on, with the voting turnout. We have seen, perhaps through the media more than use by private citizens, that a lot of information is being exposed that may well not have been exposed without freedom of information. As with some of the previous discussions that we have had, it is not always clear that it is the Freedom of Information Act that is driving the behaviour. There are many other things now, such as citizens’ expectations, the way that we work and communications technology. Although the focus is often on the FOIA as being the cause of these things, it is only part of the picture.

Q211 Chair: How many of the complaints that you get about the Act are the result of people not understanding what its extent is supposed to be?

Graham Smith: We still get quite a lot of those, but we tend to deal with them quite quickly. Most often, they come from individuals or requesters who have unrealistic expectations of the Act. For instance, they may not understand simple things such as the fact that it extends only to public authorities and they are asking for information from a bank. There is some confusion there.

As for public authorities, the Act covers over 100,000 public authorities of different sizes, from individual NHS practitioners to huge Departments of state. It is not surprising, therefore, that some of the smaller authorities do not fully understand that they have obligations; many public authorities will not see a freedom of information request from one year’s end to the next, so when they come to us they may not be clear about their obligations. We can quickly put those things right with a phone call or an e-mail and get things back on track. Those issues do not tend to be a concern to us in complaints; it is more when we get into the meaty complaints where there are real disputes over the substance of the access arguments.

Q212 Mr Llwyd: A complaint that we have heard from several witnesses is that the Act was not intended for use by journalists or commercial organisations, or those pursuing personal agendas. How would you respond to that suggestion?

Christopher Graham: As a former journalist, I have a fairly high view of my former trade. The work of the press, week in and week out, whether in covering Parliament or asking awkward questions, is an important part of our democracy. I am sure that many of the questions asked under the Freedom of Information Act are vexing, but that does not mean that they are vexatious.

I cannot think of a really big news story that has resulted from a press release. It was someone like William Randolph Hearst who said, "News is what someone doesn’t want you to know; all the rest is advertising." You therefore start off by asking awkward questions. The questions may seem rather trivial and aimless, but by pulling at the thread you can come across some really big accountability issues. It is inevitable that some of the most frequent users of the Freedom of Information Act will be journalists, but I see nothing wrong with that.

Q213 Mr Llwyd: What would be the impact of requiring the requester to explain why he or she wants the information?

Christopher Graham: In our guidance to requesters, we suggest that it is helpful not to be mysterious about what they are looking for and why they are looking for it, because it aids the authority in finding the information that they are seeking. Similarly, we encourage the public authorities to be as helpful as they can, perhaps to say, "We don’t hold that, but we do have this", to help them to refine the request. I would not want it to be on the face of the statute that they could not have the information unless they explained what it was wanted for. That rather suggests that the authority could decide whether people ought to have the information, depending on whether it accepted that their purpose was a valid one. I would prefer to urge public authorities to deal more robustly with the obviously vexatious requests rather than just going through the motions and finding some other reason or exemption. It is quicker, frankly, to face down the obviously vexatious.

I would suggest one change that the Committee might like to consider. I, as commissioner, am able to turn away business because it is either vexatious or frivolous, but a public authority does not have that power; it is only able to deal with vexatious. I think you could add frivolous. The requester might then appeal to the commissioner, saying, "But that wasn’t frivolous at all." Most of the time, they would not do that, because there is a fair amount of frivolity; if you turn it away at the first point, then probably it will go away.

Q214 Mr Llwyd: That leads me on to my next question. The university of Oxford said that the test for vexatious requests under section 14 was "very high", saying that it must be obsessive; it must harass the authority, distress staff, impose a significant burden, cause disruption or lack any serious purpose or value-in other words, what you just said about being frivolous. It also said that there was "little incentive" to use the section 14 exemption because it applied only to the request and not the requester. Should the vexatious test be amended to allow the requester to be identified as being vexatious, so that requests are allowed only in limited circumstances-for example, as with vexatious litigants in court?

Graham Smith: You could do that, but because of the way that the Act is drafted and constructed, the focus is always on the information. It is the request that is looked at for these purposes rather than the requester. In reality, there is not a lot of evidence that vexatious requests are being made by people using pseudonyms or disguising their true identity. If they are, it is often fairly obvious. Public authorities who believe that they are experiencing this sort of behaviour go to some lengths to identify whether there is a pattern of behaviour or whether people are working in concert in a way that they feel is disrupting their business.

The factors that you listed are in our guidance on handling vexatious requests. You do not have to satisfy all of those criteria, and the criteria are put forward to be helpful to public authorities as being the sort of things that they should be looking for. In the early days of freedom of information, public authorities were crying out for some guidance that told them what a vexatious request might look like because it was not defined in the Act and they wanted some pointers. Now that we have given them some pointers, they say that they are too onerous. However, there have been some useful judgments from the Information Tribunal and we are revising our guidance in light of those.

One of the frustrations that I have when authorities say that the test is too high and burdensome to apply is that they are not taking a longer view. All public authorities have them; we all know them, and I am sure that you see them in your constituencies-people who are obsessed, perhaps with good reason, with particular issues and who will pursue them, and pursue them to great lengths. If that is a recurring problem, I suggest that it is worth investing the time and doing a proper job of explaining to them why they are vexatious, making a case as to why their request is vexatious and putting it to the commissioner. On the whole we support public authorities, and the tribunal supports us in this area.

The alternative, which causes frustration, is that public authorities may think that a case is quite easy and say, "We can deal with that quickly." Even though the authority recognises that it is part of a pattern of vexatious requests, they think that it is a quick one and may just turn it away. That will stop them building up a convincing case of vexatious behaviour, which is why I say they do not necessarily help themselves in that respect. However, we are always ready to give advice and to talk to public authorities if they are facing these issues, and our guidance is being revised at the moment.

Q215 Mr Llwyd: On that point, some public bodies have said that they respond to what appear to be vexatious applications simply because they believe that it would be too burdensome and complex to deny them. Do you believe that the definition of "vexatious" is sufficiently clear and robust, and is that why you are reviewing the situation now?

Graham Smith: I think that we can give more clarity, and there have been some helpful judgments from the tribunal. As I was explaining, the Act just uses the term "vexatious", but people have asked for some guidance to build around it, and we have come up with some criteria. Those criteria have been tested and we are now reviewing them. That is part of the experience, including the work of this Committee, that comes with five to seven years of experience and learning under the Freedom of Information Act. It is not easy, but we have a strong Act in the UK. You can draw on overseas experience to an extent, but the UK context is quite unique. We are still learning from our experience of the FOI Act and so we keep our guidance constantly under review. We do not have a monopoly of wisdom on these things; we learn from tribunal judgments and from other commentators. We listen to people, and we adjust our guidance and our thinking accordingly.

Q216 Chair: Information technology has facilitated the use of the Freedom of Information Act to the benefit of citizens, but it can also be used on a scale that can constitute denial of service, with people quite deliberately and with intent putting in large numbers of requests to a large number of places at the same time. That is an experience that Members around this table probably shared in recent months, when a deliberate attempt was made to organise vast numbers of e-mails coming in, to such an extent that, unless you have a system for managing them, it actually blocks the way to constituents with urgent problems that they need to contact you about. Do you see this as a potential problem and, if so, what needs to be done about it?

Christopher Graham: It is just a fact of life in the modern world. The internet and e-mail technology has empowered the citizen, and the citizen can be very demanding as a result. I hear what you say about the extent to which Members of Parliament can be subjected to mass lobbying over very short periods on particular pieces of legislation, clauses of a Bill and so on. That is part of our modern democracy. It may feel like denial of service to you as individual Members of Parliament, but when you are talking about freedom of information requests made of a public authority, I do not think they experience quite the same phenomenon. There is no doubt that there is an increased use of the Act. Developments such as whatdotheyknow.com enable individuals to make very public freedom of information requests, and then everyone can see how they are getting on, what the answers are and comment on them.

It is worth bearing in mind that the Information Commissioner’s Office is a public authority. We have to deal with a lot of freedom of information requests, and of course we have to be supremely good at doing it or people will say that we are falling down and not turning things round in time. Of course, we turn things round in time for that very reason. I often wonder whether some of the requests that come to the ICO are not from very well informed information officers in other public authorities who want to make the point, "This is what it’s like, chum." Fair enough. We have to deal with it, and we have to deal with internal reviews and the whole nine yards. I feel your pain, but we all have to accept that it is part of the modern world. However, there are good aspects to the e-democracy that we live in, as well as things that are very challenging to us all.

Q217 Jeremy Corbyn: I should be grateful if you were to pass your last answer on to IPSA, which might consider increasing its staffing arrangements for dealing with e-mails.

I turn to the question of the statutory limits. Why were time limits on public interest extensions and internal reviews not introduced in the original Act?

Graham Smith: The reason is slightly different for public interest test extensions. In the original proposals for the Bill there was no suggestion of public interest extensions. They were introduced in debate, primarily because of concerns about the need for third-party consultation in some cases. Reading between the lines, as far as I can judge it, the fact that you were dependent on the responses of the consultees would make it difficult to put a time limit on it. It was recognised that the backstop-this does happen in practice-is that somebody can make a complaint to the commissioner, saying, "This is all taking too long. Can you hurry it along, please?" If needs be, we can then issue a decision notice; a phone call and a fairly stiff letter to the public authority is usually sufficient, saying, "This is not good enough; please turn this round in the next 20 working days."

Q218 Jeremy Corbyn: Are there any disadvantages to the statutory time limit concept?

Graham Smith: I do not think that there are. To be honest, this problem does not cause a great deal of difficulty, but when it does, requesters are left not knowing what to expect, how long they might have to wait and whether or not the request was reasonable. If they come to us and we investigate and say, "We think that in this case it is reasonable", even if technically they have gone over the statutory time limit, a proportionate approach to enforcement is sufficient to ensure an appropriate outcome. I know of a case in one Government Department where there needed to be consultation with an overseas Government, and they just did not respond. It was a highly sensitive international issue, and the consequence was that the request just did not get dealt with for about a year and a half. The requester was not too bothered, because he had a lot of the information that he wanted, but we still had the request on our books. Something that puts some framework on this would be better, so that public authorities were clear as to their obligations. More importantly, requesters would have a clear expectation of the time that would be taken.

You asked about internal reviews. That is a very different situation, because they are not required under the statute but are dealt with in a code of practice. When the matter was debated in Parliament, the view was taken that it was an administrative issue best dealt with in the code of practice. It almost follows that, because it is not a clear statutory provision under the Act, you cannot have a statutory time limit for an internal review, so it is dealt with through guidance and the code of practice, and reinforced by ourselves that it would be a suitable time. We would expect internal reviews to be done within 20 working days; there might be exceptional grounds for extension, but never more than 40 days.

Q219 Jeremy Corbyn: Do you have any evidence to suggest that bodies are using the absence of a statutory time limit for public interest extensions or internal reviews as a means of delaying their responses?

Graham Smith: Sometimes, as in the example that I have just given, it is quite deliberate, but for good reason rather than for delay and obfuscation. When there are quite challenging time limits under the Act, we have found that public authorities will put their efforts into meeting those, and their performance might slip somewhat when it comes to issues that do not have the same direct repercussions because there are no statutory time limits. We have the power to issue practice recommendations if there is persistent failure to meet the time limits in either of the examples that you gave. We have done that with some public authorities, and it has produced the required results and improvements in performance. Generally, public authorities are getting better, but requesters certainly suspect that there is deliberate delay and obfuscation, when requests just roll on and on and it is months and months before they get a response.

Christopher Graham: One of the things that we have done over the past couple of years is to speed up the whole process, with the Information Commissioner’s Office itself being much more aggressive about meeting timetables and monitoring the performance of public authorities. With the case load that we have at the moment, as my colleague Graham Smith has said, we can turn round about 47%-that is the last figure that I saw-of the section 50 business that we get within a month, because it is sometimes simply misconceived or has come to the wrong place; and we can get rid of 75% within three months. We have no cases over a year old, despite the fact that we issued 24% more decision notices this year than last.

I give these stats simply to show that-I won’t say we have thrown the engine into reverse-by being very aggressive and being concerned about timetables and meeting targets, we sent a shockwave through the whole system. Public authorities now have to respond because they realise that the Information Commissioner is going to be on their case, whereas in the early years you could be fairly confident that the Information Commissioner would not get to you for a long, long time. If it was a public interest calculation or an internal review, it could somehow get stuck in the system. Very often freedom of information requests are dealt with at quite a low level initially within an organisation, but if a difficult question needs to be sorted out, it has to go to someone senior. If there is no time limit on it, or the Information Commissioner is not breathing fire, it will always be at the bottom of the in-tray. We have been able to make the system work much better by reorganising our own systems and being much more efficient, and therefore putting a bit of ginger into the system to make sure that public authorities respond in a more timely way.

Q220 Chair: Has anyone been prosecuted under section 77?

Christopher Graham: It is very difficult to make a section 77 offence stick.

Graham Smith: They haven’t, no.

Christopher Graham: The reason is because you have to get it to prosecution stage within six months. The matter may not get to the Information Commissioner for some time, and it takes time to investigate the circumstances of the case; and you then have to come up with a case that will survive court action. That is the reason. It is not that we have not seen evidence of obstruction or the destruction of material after requests have been made, but we simply cannot get them to court in time. That is why we suggest in our evidence that section 77 offences should be triable either way-in the magistrates court or the Crown court. A magistrates court case is out of time if the offence is older than six months, but the Crown court allows us a longer time period to get a case to court that will stick. Again, we believe that that would send a very clear signal that obstructing the operation of the Act or simply responding to a freedom of information request by deleting material is a criminal offence and that there is a credible deterrent penalty for dealing with it.

Q221 Chair: Do you think that it is necessary to increase the penalty as well? You would not need to go for trial either way if you could achieve it with a statutory extension.

Christopher Graham: We would like the power to fine, and if you want a fine that will stick-to be dissuasive-you really need to go to the Crown court. That is why it needs to be triable either way. You get the benefit of the extended time but also the ability to levy a fine. This is one area where I am not seeking to lock people up; a fine would be appropriate, but the Crown court could impose an unlimited fine.

Q222 Elizabeth Truss: Do you have an estimate of the total amount that the public sector is spending per year on answering FOI requests?

Graham Smith: We do not, but that work has been done, and I think some research has already been commissioned by the Ministry of Justice. Some work was done back in 2006, when the Ministry of Justice commissioned a report from Frontier Economics, and the estimated cost was then around £35 million.

Christopher Graham: I am certainly aware that an awful lot of money has been wasted by public authorities in not doing freedom of information very well and not publishing proactively information that could just be out there, and sometimes fighting to the last ditch to preserve the secrecy of information that is interesting only because the public authority does not want you to know.

Q223 Elizabeth Truss: We heard from previous witnesses that, in some cases, people are making FOI requests to multiple authorities for information that is sometimes already in the public domain because it is easier to collect it like that. Rather than looking through research papers, they are using the public bodies to do their research work for them.

Christopher Graham: As the open data and transparency programme gets going, it will be much easier to compare and contrast the performance of schools, hospitals and different public bodies, and that is what the campaigners and activists are increasingly doing-matching this database with that and coming up with some interesting facts.

Q224 Elizabeth Truss: The point that I am making is this. If freedom of information requests are always free at the point of use, is that not the simplest way to collect information, rather than having to do the research work yourself if you are a journalist or someone interested in a particular issue?

Christopher Graham: If it is already in the public domain, there is a very easy answer to the freedom of information request.

Q225 Elizabeth Truss: There is still an effort in answering that-in saying that the information is already in the public domain.

Christopher Graham: It is a question of time. The open data initiative is now putting into the public domain all sorts of information that was not there before, and it is probably taking a bit of time for people to understand that and get used to it. There was an interesting item on the "Today" programme yesterday about people being a bit bamboozled by the wealth of material that is there and not being quite sure what to do with it. I am not certain that making a whole series of freedom of information requests to every public authority in the land provides more easily manipulable data than does the interrogation of a dataset. We are all getting used to the fact that items of expenditure of £500 are available on local authority websites, to take one example, and local authorities increasingly understand good practice in how to put information out there. The fact that it is being put out in usable form rather than with the curse of the PDF is an encouraging development.

Q226 Chair: On that point, is it a sufficient answer, if true, for a public authority to say, "This information is already in the public domain, full stop"?

Graham Smith: Yes, it is. It is an absolute exemption under the FOI Act. Sometimes a requester will say, "Well, you told me that it’s out there but I can’t find it." I may not be a whizz kid at IT, but sometimes things on websites are not always where you would expect to find them, so it takes a bit of navigating. I am not quite sure that the sort of question that you envisage could ever dry up in these circumstances, even if the information was actually out there. If, as you say, the information was free at the point of use and the question was whether a charge should be made to stop people being lazy, I am not quite sure. You might reduce the number of FOI requests, but whether-

Q227 Elizabeth Truss: You might reduce the number of spurious FOI requests that relate to information that is already out there. You might also address the issue of a small number of people making a lot of FOI requests to get information that would hold up those genuinely searching for answers that they cannot find. Should not regular users like journalists pay a contribution towards the cost of getting that information, as indeed they would have to do if, for example, they were seeking information from the Economist Intelligence Unit? They would have to pay for that. Why should they not pay public bodies a contribution to the costs incurred by that body in obtaining the information? We all have to pay for information when we go to other countries or other bodies to get it, so why not from those parts of the public sector that have to give information?

Christopher Graham: This sounds like a renewed argument for the stamp tax on newspapers, which was abolished a long time ago, but, before you ever get to the question of charging, there is an issue for the ICO about publication schemes. We have done a lot of work on the model publication scheme that public authorities should be running for proactive disclosure and for making clear on their websites where information can be found. It is a bit rich to have public authorities saying, "We are assailed by unreasonable freedom of information requests", when they do not have an adequate publication scheme, they have not got their act together in terms of records management and have a rotten website and so on. There are things that you can do before you ever get to charging.

On the subject of charging, I believe that public authorities need to be accountable to their electorate and through the fourth estate. The imposition of charges does not really get us anywhere. It would cost a lot to administer. The experience in the Republic of Ireland was that it had a devastating effect initially because of the number of requests being made, both good and bad. You may want to dissuade cranks, but there are lots of rich cranks.

Q228 Elizabeth Truss: Is it not the case that the number of requests has now gone up to previous levels?

Christopher Graham: Yes. So what has been achieved?

Q229 Elizabeth Truss: The public sector is not losing vast amounts of money responding, but is it not a question of basic economics-that we want our public services to spend their time helping patients or keeping the streets safe? We do not want huge amounts or even significant amounts of money being spent responding to requests without compensation. Let me be clear: I absolutely support the Freedom of Information Act. It is absolutely important that public bodies are transparent about what they do, but it is not unreasonable to say that a contribution to the costs of coming up with that information should be made, otherwise you get a situation where public bodies are diverted from their central purpose.

Christopher Graham: You do not charge for attendance at your constituency surgeries, do you? It is part of accountability.

Q230 Ben Gummer: It is part of our job.

Christopher Graham: It is part of a public authority’s job to be accountable and to be answerable, and the Freedom of Information Act is the way they do it.

Q231 Nick de Bois: You took refuge behind local authorities publishing data when answering a question on FOI requests. I have found, particularly with my local council, that you need an FOI request to get behind the very limited information that is made public. Do you see it as part of your role perhaps to challenge local authorities about the quality of the information that they publish?

Christopher Graham: The publication scheme under the Freedom of Information Act, backed up by the Information Commissioner, is one way to make the whole open data and transparency thing really work. If you have a recalcitrant local authority-I think it is safe to say that Nottingham city council does not much like dealing with us or with the Secretary of State for Communities and Local Government, who has published a code of practice in these areas-the Information Commissioner has the power to enforce the publication scheme, which goes beyond the exhortation of Whitehall to be open. The Prime Minister was talking at the Liaison Committee last week, I think, about the difference between democratic accountability and what he described as bureaucratic accountability.

I may deal with that a bit later in the discussion, but so far as open data and transparency are concerned, the Information Commissioner’s Office can be the delivery mechanism for a lot of what is otherwise mere aspiration. If you are having problems with your local authority because it is not really entering into the spirit of things-we have a consultation out on the publication scheme at the moment-we would certainly expect to be the enforcers in making sure that the information is made public in usable and processable ways. We are the allies here.

Q232 Nick de Bois: That is my point. Is it your responsibility-yes or no-if someone wanted to complain about the quality of data published by local authorities? Would they complain to you now, or are you seeking those powers?

Christopher Graham: I would like to give a yes or no answer, but it slightly depends on the nature of the information, given the present state of publication schemes. I certainly envisage that, in fairly short order once the White Paper on open data and transparency is published, which I think is in May, it should become clear that the whole freedom of information regime is the enforcement mechanism for making sure that information is published.

Q233 Nick de Bois: I am pushed for time, and I want to return to one point. When I was elected, there was a contract, if you like, between me and the public that, once elected, I would be paid by the state to represent them but also to try to help them out. In respect of the Freedom of Information Act, I question whether there is a contract that the public should be paying for commercial organisations-particularly newspapers-to do the job of finding out information to help fuel newspaper stories. I am trying to understand from your answer, which is not clear, whether you believe that it is fair that the public should be picking up the bill to help commercial newspapers do their job of putting stories in the paper.

For the record, I completely approve of the Act, but, according to a BBC report, which I checked on the web, I read that in 2010 the university of Birmingham reported that £34 million was spent by local authorities. It suggests that a lot more money has been spent. Do you support the taxpayer having to fund newspapers to go and find stories?

Christopher Graham: You say commercial newspapers, but I do not know of a newspaper that is not commercial.

Q234 Nick de Bois: The point is that they are businesses. That is the point I am making.

Christopher Graham: They are businesses, yes, but it is swings and roundabouts. The great benefit for the public of commercial organisations using the Freedom of Information Act is, frankly, about competitive prices. You are much more likely to get a good deal for the taxpayer if it is possible for companies to research the market to see whether they can offer a better deal. One of the great things about freedom of information is that it shines the torch into the dark corners of the public service and roots out examples-

Q235 Nick de Bois: We do not disagree about that. We are absolutely at one on that. My point is-

Christopher Graham: That is one of the benefits you get. If you feel that-

Q236 Nick de Bois: I would argue that it is a benefit for newspapers or media outlets of any sort to gain commercially from the taxpayer. That is the question. It is not about the value of it. I could not agree more that they have exposed some fantastic stuff, just for the record, but I am asking whether you think it is right that the taxpayer should pay for it.

Christopher Graham: I do not favour charges, and I think that the taxpayer as a citizen benefits from a vibrant press. That is part of our democracy.

Q237 Elizabeth Truss: Are we essentially talking about a cross-subsidy between the media and the public sector, at the expense of the taxpayer? Can you not envisage a charging system where for a retailer, a constituent, applying for a freedom of information request there would not be a charge, but if somebody was carrying out a lot of freedom of information requests on behalf of a commercial organisation there would be a small charge for each request-similar to the postcode finder that Royal Mail has, where you can look up a certain number of postcodes but once you get over a limit you have to pay? That would be a way of redressing the balance that we are talking about, because at the moment an awful lot of research work is being done within the public sector, essentially on behalf of media organisations.

Christopher Graham: You might actually increase the administrative burdens on councils, because you would simply get requests put in by Aunt Edna instead of by the Oldham Evening Chronicle. It is just not worth going there. It really is not worth going there.

Chair: I seem to remember hearing all these arguments under the previous Government.

Q238 Jeremy Corbyn: I turn to the question of public services performed by private organisations, the degree to which they are subject to freedom of information requests, and the way in which public services and their performance are essentially hidden from the public. There is also the question of universities and university research. Universities are obviously public bodies and, to some extent, they are publicly funded, but they increasingly have huge numbers of private sector research contracts, which they will claim are commercial and therefore not open to FOI requests. What are your thoughts on these two areas?

Christopher Graham: These are very big questions. Briefly, our position on the higher education sector has been well rehearsed in debates on the Protection of Freedoms Bill. We believe that the universities have very adequate potential exemptions, but they sometimes need to conduct their case a bit better than they have in some celebrated cases. However, just because universities get a lot of money from the private sector, it does not mean that they are not a very important part of the public realm. Students, parents and schools will expect universities to be publicly accountable, and they are public authorities. We want to work very closely with the higher education sector-I will be talking to vice-chancellors shortly-and we would be delighted if Universities UK would give some helpful guidance to the sector in co-operation with the Information Commissioner’s Office. I believe that their fears are greatly overdone.

On the other question, yes, following the public pound-this is the big question on the big society-if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability? The Prime Minister dealt with that the other day in one respect, by saying that it is about accountability, through tracking expenditure and outcomes. That is certainly part of it, but we nevertheless need to find ways of holding the alternative providers to account if they are trousering very large sums of public money and carrying out public purposes contracted by authorities.

Q239 Chair: Are you sure that you want to use that phrase?

Christopher Graham: Trousering?

Chair: Yes.

Christopher Graham: It is being remunerated to a grand extent from public funds.

Q240 Jeremy Corbyn: If an organisation is carrying out a function given to it by a local authority from which it can make money, such as commercial refuse collection-trade waste and that sort of thing-do you feel that the constraints on examining what private enterprise companies do under FOI is a problem?

Christopher Graham: The public authority will still hold the information.

Graham Smith: If information is held on behalf of the public authority, then it is still covered by the Freedom of Information Act. The Secretary of State for Justice has the power to designate bodies for the purposes of the Act, but they can be designated only to a certain extent. If you have a body that is created specifically for this purpose, or it has a large number of definable relationships with public authorities, then I think it will be possible to cover those issues with a section 5 order under the Freedom of Information Act. Those things can be explored. The other way that you can do it, which is less clear, is to have something in the contracting arrangements that imposes requirements on the new contracting body to disclose information to the commissioning body, but probably backed up with an obligation to co-operate, with access to information law. Something similar was done under the code of practice when the Act was first brought into force, and I think that it has been reasonably effective.

Q241 Jeremy Corbyn: This is the last point from me. There is huge public concern about issues such as animal testing in universities and animal experimentation. It was on the news this morning. Do you feel that there is a danger-if a university or hospital contracts out research services that involve animal testing to a particular company, even though it is quite clear that they will be the eventual beneficiaries or otherwise of the research-of the public’s right to know or to express their concern about something being controlled or prevented in some way?

Graham Smith: Under the existing arrangements, there are clear statutory bars, so there would be an option to extend those statutory provisions to other bodies that were conducting that sort of thing. Where information has been released, there are exemptions under the Act that cater for this situation, but it all comes down to public interest. In one recent case that involved Newcastle university, we had a situation where the commissioner had agreed to the withholding of the information, but that decision was overturned by the tribunal. It comes down to how to judge the public interest in a particular case. Given that it is specifically regulated by legislation, I should have thought that this was not an area where the difficulties that you spoke about in your previous question would have extended as a result of a privatisation programme.

Chair: Mr Gummer wants to make a final point.

Q242 Ben Gummer: Thank you, Sir Alan. Mr Graham, you said that universities have unfounded fears, and that mandarins, as you called them, have unfounded fears. In fact, everyone seems to have unfounded fears about the implications of the Act. Do you not feel that, at any point, any of these fears might be justified in any measure whatever?

Christopher Graham: I want to engage with the post-legislative review in a constructive way, and if we can see changes that might be made in the regime, that would be good. However, I have a problem with the suggestion that everything has to be on the authority’s terms. I was very concerned the other day by the imposition of the Attorney-General’s veto on a decision notice before the matter had been considered by the Information Tribunal. It would have been considered by the tribunal today, by the way, but the veto was imposed before it had even considered the matter.

I find it rather difficult to square all the talk about openness and transparency with the slightly grudging approach to the mechanics of the Freedom of Information Act. The Prime Minister referred at the Liaison Committee to freedom of information furring up the arteries of government. I do not think that you have to choose between democratic accountability and what the Prime Minister described as bureaucratic accountability. It is not either/or. It is both/and. The danger of the intervention that we had from Lord O’Donnell and other mandarins in the House of Lords debate, and the concern that it is all terrible, too expensive and a great bureaucratic burden, is that there really is a gap between the rhetoric of openness and the reality of reluctance. The way through all this-

Q243 Ben Gummer: Are they lying? Is that the implication?

Christopher Graham: I am not accusing senior figures of lying. I am just saying that everyone has got themselves into such a state about this that it is a self-fulfilling prophesy. If you hear from our lords and masters that the Freedom of Information Act is insupportable and all your secrets will be revealed, then it drives behaviour lower down in the civil service, which is unfortunate and needs to be dealt with.

I am a strong supporter of the aims of open data and transparency, but I believe that it needs to go hand in hand with the Freedom of Information Act, otherwise you are simply defining the public interest as what is in the Government’s interest, and they will not always be the same. I am afraid that the Freedom of Information Act will always be troublesome, but it will be troublesome in a good cause. The Freedom of Information Act, properly implemented, and going hand in hand with openness and transparency, is a force for good in 21st century democracy.

Chair: We had intended to ask you about the European data protection directive, but because we do not normally like the Committee’s sitting to eat into Question Time we will write to you on those points. Thank you very much indeed.

Prepared 21st March 2012