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Lord Lucas: The noble and learned Lord did not cover my comments on Amendment No. 79 and on the lack of a time limit. That seems to provide for a public interest consideration to take place. I should be grateful for a reply on that point.
It also occurs to me in the light of other remarks by the noble and learned Lord that when he is considering the redrafting of the old Clause 13(5), it appears that we need some understanding of what the Government mean by "factual". On many occasions facts are processed. A statistician will collect a great many facts and will then produce some form of statistical paper containing conclusions, graphs and summations. Am I to understand that that kind of processing of facts to produce something that is arguably still fact, but is arguably opinion, is covered under the general heading "factual", or is all that is covered the raw material?
Lord Falconer of Thoroton: The position regarding the time limit is that there must be consideration of whether it is within an exemption of 20 days. So far as concerns the public interest decision under what will become Clause 2, that decision must be made "within a reasonable time". That comes from Amendment No. 105 dealing with Clause 15. We think it right that there should be a different approach to the two, because the public interest factor may take longer than that of the exemption, but there is still an obligation to do it within a reasonable time, which will depend on the circumstances of the case.
As regards the term "factual", we shall deal with it in some detail when we debate Clause 33 and the policy decisions issue. What is "factual" and what is opinion is difficult to define. But there is a line to be drawn somewhere, and it is a matter of judgment in each case. Perhaps we can return to the issue when we debate Clause 33, where it arises four-square. I commend the amendment to the Committee.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 5:
- Page 1, line 21, leave out subsections (4) and (5).
Lord Lester of Herne Hill moved Amendment No. 6:
- Page 2, leave out lines 9 to 12.
The provision as it stands reflects Section 8(6) of the Data Protection Act 1998, which in turn is taken from the Data Protection Act 1984 and is presumably
intended to allow for automatic updating of computerised files (for example, bank statements). While that is suitable and makes sense in the area of data protection, the provision could have a serious negative effect on public access to information.Our proposed new clause which follows Clause 1 on the protection of records relates also to this matter. I refer to Amendment No. 24, which is grouped with this amendment. It may be convenient if I speak to that at the same time.
Amendment No. 24 seeks to insert a new clause into the Bill requiring authorities to take all reasonable steps to prevent the destruction or alteration of a record which may contain requested information until the request has been finally determined.
The Bill already provides that deliberate destruction to prevent disclosure would be an offence under Clause 75(1). This amendment requires authorities to ensure that a record is not accidentally destroyed while a request may be active--for example, by allowing it to be "weeded" as part of the routine process of destroying old records which are not selected for permanent preservation in the Public Record Office.
That is not a fanciful concern. Only the other day I received a letter from a distinguished academic complaining that apparently the Home Office had accidentally destroyed a great many records relating to decisions relating to the European Convention on Human Rights, joining it and so on. He was complaining that he had been to the Public Record Office and could not obtain them. One need not go into that particular case. In the best of administrations that may happen. But there needs to be something other than a "bad faith" guarantee to stop it happening. I beg to move.
5.30 p.m.
Lord Lucas: I have a small amendment in this group, Amendment No. 8, which I believe would probably be better dealt with by some form of guidance rather than being included on the face of the Bill. When dealing with public authorities over the years, it has been my experience that you are asked why you want to know the information and, on occasion when you refuse to say why, the information is not forthcoming. That is not a desirable practice. I do not believe that there is, or should be, any right under this legislation for the public authority to know why someone wants the information. It is sufficient that the person has made a request.
However, it is frequently pointed out that it may actually be helpful for an authority to ask someone why he wants such information because in that way those concerned may be able better to choose what information he may require or, indeed, provide such information in a form that is more appropriate to his particular requirements. I cannot see any way of drafting a clause in the Bill that would cover those two opposing sides. But it is important that public authorities should be told quite clearly that they do not
have the right to ask that question and that the provision of information is not dependent upon the use that anyone wishes to make of it.
Lord Clinton-Davis: I support in principle the points set out in Amendment No. 24. It is too easy for a public authority to say that the documents have been destroyed. I do not know whether that can be dealt with by way of instruction to public authorities rather than by way of the suggested new clause.
I may be wrong, but it seems to me that an indication by my noble and learned friend Lord Falconer about the policy of the public authorities in this respect would be appropriate on this occasion. However, I do not know whether the noble Lord, Lord Lester, will go as far as amending the Bill's provisions. It is very important that the protection of records is at least dealt with in the way that I have suggested.
Lord Williamson of Horton: I rise to comment on Amendment No. 8, tabled in the name of the noble Lord, Lord Lucas. I agree that it would probably be better to deal with it through guidance. The reason I intervene now is that I had responsibility for running a scheme in the European Commission under which officials could not require the applicant to justify his request--that is to say, the same objective sought by the noble Lord, Lord Lucas. None the less, there was a temptation on the part of officials from time to time to think it very reasonable to ask the applicant to justify such a request. That was particularly true where there were forthcoming legal cases for jurisdiction of one kind or another. It is important for us to stick with the principle set out in Amendment No. 8; namely, that, in one way or another, we should insist on this point. I do not insist on it being included in the Bill, but it is an important point because people will try to bypass the arrangement unless it is set out very clearly.
Lord Norton of Louth: Perhaps I may add my support to the principle enunciated by my noble friend Lord Lucas and suggest a way that it might be approached. I should link Amendment No. 8 with Amendment No. 29, tabled in the name of my noble friend Lord Mackay which imposes a duty on a authority to be helpful to the applicant. It is possible that the words of my noble friend Lord Mackay should appear on the face of the Bill, but there could also be a provision in the code of practice to meet the point raised by my noble friend Lord Lucas. If there is an imposition on the authority to be helpful, this could involve asking for what purpose the information is intended. However, there should also be an indication of some prohibition in terms of intrusion or as regards officials seeming to be unhelpful in some way to the applicant. That may be a way of dealing with my noble friend's extremely important point.
Lord Mackay of Ardbrecknish: As my noble friend Lord Norton said, some of the points mentioned in the amendment of my noble friend Lord Lucas will be addressed in my later amendments. My noble friend
has rightly explored the real point: officials must not be able to require someone to say why he wants the information. If the person requesting the information does not say why he wants it, officials should certainly not be able to refuse it.However, I can understand that there may be circumstances where the official is asking why the person wants the information in order to help the person find the exact information required; for example, the person may not have phrased the request properly. This is a difficult issue. We must ensure that both points are dealt with either in the Bill or in guidance. I shall probably have more to say on the matter when we deal with a later amendment relating to authorities assisting applicants.
I turn now to the amendments put forward by the noble Lord, Lord Lester. I am somewhat puzzled. Someone may ask for information that is a little old; indeed, it may well be out of date and have been superseded. However, the important point is that at the time that that information was used the new information was not available. I am in some doubt as to whether one should, so to speak, "doctor" a record. It may be reasonable to put an addendum on it, but events move on in many fields, new information becomes available and new discoveries are made--that is certainly so in the health field.
The information on which a decision was taken some years before may turn out to have been inadequate but it may not have been inadequate at the time. Therefore, it would be wrong for people to update information. It might look as if the officials or Ministers who took the original decision did not read the information given to them. I hope that I am making myself clear. The noble and learned Lord indicates that I am not. I invite him to be in my shoes, especially during his explanation of the last group of amendments. I am just getting my own back.
Certain officials may have had to make a decision about an issue and would have done so on the best scientific and medical advice available. However, in two or three years' time that may have been overtaken by other information which, if it had been available at the time, might have caused those officials to take a different decision. If someone is trying to look at decisions taken two or three years previously, he should only be provided with the information that was available at that time. He should not have "hindsight", which, as noble Lords know, is the best kind of vision to have.
I shall not mention the vision of hindsight that the noble and learned Lord might like to have about a certain project in which he is involved, but I can certainly bring to mind one or two issues with which I was involved when I was health Minster at the Scottish Office more than a decade ago. Those decisions were taken on the best possible information available at the time. With the passage of time, and with medical advances, that information was not wholly accurate. However, it would be quite wrong if someone could point the finger today at the officials--and, needless to say, the Ministers--and say that they made the wrong
decision. Indeed, they might have made a different one if all the information had been available; but it was not. That is why I am sympathetic to the noble Lord's amendment. We should not be in the business of updating--that is to say, changing records--years after they were created.
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