tmp-1

  • (Missing audio feed, untranscribed) (10.06 am)
  • ... which is a good thing but, you know, clearly there is more to be done.

  • Are there some clear categories of things you would like to see have been published?

  • Look, council expenditure, so the Taxpayers’ Alliance is mainly concerned about money and spending lines within the budget and that is exactly the kind of stuff that absolutely should be there, you know as a matter of course for people to see, you know, broken down, you know, down to a pretty low level as to how much can be spent on each individual line of budget and you know, as far as that goes, the more information the better, as far as I am concerned.

  • I think local authorities have to publish details of spending, does that make a difference?

  • It has made a difference. Publish information in more accessible ways than others so I think certainly a move towards, you know, more — I mean obviously sharing best practice and looking towards what is the most beneficial and productive way of publishing it, certainly so that you can compare and contrast, because a lot of what we do is about trying to identify which bodies are delivering best value, which are not delivering such good value so you can compare and contrast. You can say: look, if X council is delivering this service for that amount of money, why can’t you down the road do the same thing, and hopefully therefore push overall costs down?

  • Can I turn now to a different subject. The Taxpayers’ Alliance says it supports FOI by covering private companies delivering public services under contracts. Does that extend to charities delivering public services under contracts?

  • Yes, I think it would, and we look at — I mean obviously Kids Company has been in the news over the last few months, a body that was handed in excess of £40 million over a decade with absolutely no accountability to the taxpayers footing the bill as to how that money was being spent.

  • Would you have a lower limit on the burden that that puts upon small companies and charities? I mean, I can give you two examples to focus on: one might be a small company possibly doing some painting and decorating on a pavilion on playing fields belonging to a council, another example might be a small mental health charity which is receiving a small number of tens of thousands from a local authority or from a health commissioner to provide services. Are you suggesting that small organisations like that should be subject to what they would say would be a disproportionately expensive burden, or would you be prepared to set a lower limit and if so, what?

  • I am not going to pluck a figure out of the air as it what had a lower limit should be, I think clearly you need to look at what proportion of that organisation’s budget is coming from the taxpayer to decide what would be a reasonable demand to make of them. I think, you know, as far as possible it would come back on to the charity or private sector company’s part, the publishing of very solid and detailed accounts of how they have spent that money, that particular chunk of money that has come, taxpayer’s money that has come from Government or a quango or a public body or whatever in order that the information is out there, so that there would be relatively few questions that could be asked of it.

  • Why should that be the responsibility of the service provider as opposed to the Commissioner? Why cannot the commissioning authority be responsible for publishing the information about the commissionees activities?

  • Well, the commissionee would presumably have to provide the information to the commissioning body in the first place.

  • Surely if the counsel commissions a charity to provide mental health services, the Commissioner will know exactly how much money it is paying for that charity?

  • It will know how much it is paying to that charity but in terms of digging a bit deeper down the budget lines as to how much is spent within that chunk of money that they have been given in order to establish, you know, what — where the money has gone, you know, that will clearly be something that the commissionee would have to provide.

  • Why do we need this when the accounts of companies, and indeed the accounts of charities, which for the most part are companies, need to have to be published by law anyway and if you read the accounts which you can get on the internet, you will obtain the information which you will require?

  • I don’t think the accounts, for example of Kids Company — I am kind of singling them out because they have been in the news, but I don’t think had we have been looking at the accounts of Kids Company that as published would have answered the searching questions that have now been asked of them as to what happened to that £40 million.

  • Let’s just put Kids Company aside because hard cases can make bad law. Let’s suppose there are honest charities and honest companies around that are not criticised or questioned, is it fair to those companies to place yet another regulatory requirement on them when the information may well be available by open source means anyway?

  • Well, I am not sure that the detailed information that we think ought to be in the public domain would be available through open source automatically. Again I am loathe to heap particular burdens on the businesses, not least because successive governments have heaped all kind of burdens on them over the years, I think instinctively a kind of deregulation, but if a company or charity is a beneficiary of taxpayers’ money, then I think that adds a certain onus on them to account for various ...

  • Thank you. You seem to agree that vexatious and over costly address should be dealt with by existing exemptions. Some of the evidence we have is that public authorities are reluctant to use those exemptions. Is it your view that better operational guidance is needed to public authorities so that they know the circumstances in which they will be forgiven for using those exemptions?

  • May be some extra operational guidance would be helpful but again this comes down to the fact we think the section 14 rules work pretty well at the moment but I am not -

  • Having read the evidence on this from some public authorities, they find this a very difficult thing to operate, despite recent judgments, it remains a troublesome area as far as they are concerned?

  • Look, you know, the situation is never going to be perfect. But I think -

  • If you say there are sufficient exemptions in insist place, and I understand that, but if the people concerned find it difficult to operate, then that suggests that there may still be a problem with the way in which it has been defined.

  • I have not read all the evidence from all the public authorities that are submitted to you because I think that would take me a long time.

  • But at the end of the day, there are some authorities which, as far as I am concerned, seem happy with the rules as they are and I think, you know, the guys who are dealing with it happily perhaps need to be liaising with people who are struggling with it to work out what could be done better and share best practice. As I say, if that does require some new operational guidance to bring together how the rules should be working, then so be it.

  • Okay, I think thank you very much. Is there anything that you would like to say that we have not covered?

  • I don’t think so.

  • We have a lot to get through today.

  • I think that covers everything. I am aware I am the warm-up act for some far more distinguished witnesses!

  • Not at all. Thank you very much for your evidence and thank you very much for coming, that has been very helpful.

  • Introducing MR SAM HAWKE
  • Thank you very much for your evidence and thank you very much for coming this morning.

  • Thank you for inviting me.

  • Is there anything you would like to say by way of an opening statement?

  • Just a few brief words. It is Liberty’s view that the evidence on the Freedom of Information Act is clear, it is working and it is working well. It has more or less done and it is doing what it set out to do, and that is achieve a greater openness in Government and measure of public accountability, a crucial tool in providing citizens — given that they are the largest group of people who actually use the Act on a day to day basis at both central and Local Government level, and it also saves an enormous amount of public money for what is ultimately quite a small budgetary expenditure, whether it is MP’s expenses or local council’s expenditure on cars and vast number of other issues of public expense that have been revealed. It is clear that the Act is providing what it basically was tasked with doing. I think something that Liberty can speak to more particularly is its impact on access to justice. We at Liberty take on cases and intervene in existing ones on issues of significance and public importance such as the discriminatory effect of police stop and search powers and it is in cases like that, and along with many other people, the ordinary citizen uses the Freedom of Information Act in their own cases, that enable us and others to get key information necessary for bringing a claim and investigating aspects of it that we cannot get through litigation later and to supplement the process of litigation to vindicate people’s rights and challenge decisions of authorities where they have done wrong. So I think in an area of real public importance and in an era of quite significant retrenchment in access to justice through changes to Legal Aid, any further attempts to impose fees, widen exemptions and so forth would represent an even more retrograde step in providing access to justice. I will just close by saying that the Justice Committee went through the evidence in 2012 pretty thoroughly and came to conclusions that, in our view, had not been displaced. The evidence is still clear. The Supreme Court decision in Evans clarified the position in some respects, but it is completely consistent with the use of the veto hitherto and we expect going forward as well. So in our view, we think the evidence shows that the Act is working well and changes to widen exemptions or anything else should not be made.

  • Thank you. You introduce the e full range of Freedom of Information Act, as you said the information that gives citizens what they need to know in terms of wide range of Government services, police, health and so on, you make a very important point about access to justice. I don’t think that there would be a great deal of disagreement with you on that. But can I narrow down the area of discussion to the safe space for policy deliberations. In your evidence you argue that there is no basis for creating protections already available to public bodies and ministers, that is in sections 35 and 36 and the power of the veto that you have just referred to under section 53. Can you expand a little on your reasoning in that particular area?

  • Well, in our view it is clear from the evidence available that section 35 and also section 36 act as completely adequate safeguards in protecting what are legitimate Government and public interests, which you have just described. It is clear that the Tribunal, along with the Information Commissioner, are continuing to interpret what it means for disclosure to be and to not be in the public interest, but in case after case, the Tribunal has decided where the public interest lies and we believe that it is the job of the Tribunal to continue doing so and the evidence shows that it has done so correctly. The supposed chilling effect that is alleged by Government ministers in evidence after evidence of bodies such as UCL’s Constitution Unit, many others gave evidence to the Justice Committee, the evidence is weak on that. There is just as much evidence, if not more, of an improvement effect that you might describe. The openness that the Act requires is just the sort of thing that is going to focus policymaker’s minds on improving their internal records and improving the level and quality of deliberation that they go through as they reach decisions of public weight.

  • Can I just be clear: you are not challenging the legitimacy of the idea of a safe space?

  • I think everyone recognises that there are legitimate public interests to be protected, but that just a level of disagreement is often the definition of what is safe space involves.

  • An entirely protected space that admits of no openness or transparency is plainly not something the public would accept and which the regime that has been instituted rightly allows. Now, a retrenchment on that just simply would not be justified in our view.

  • We heard from the Freedom of Information Commissioner last week that both he and the Departments had become more adept over time at understanding what sections 35 and 36 might mean and that he had revised guidance. Would you consider that that might mean it is not as clear as it might be?

  • As with all decisions in law and in policy making where the public interest needs to be safeguarded, it is going to be decided on a case by case basis. Clear and totally Bright Line rules if it is not going to be possible. Of course, as other people have said during evidence here, you could have that simply by exempting absolutely everything and that is not the level of clarity that anyone I think recognises as legitimate. You are going to have a case by case assessment of what is in the public interest and that is just the sort of thing that the Information Commissioner and the Tribunal are tasked with doing and have shown to be able to do adequately.

  • In your evidence, you say nothing has changed that justifies a departure from the conclusions of the Justice Committee. Do you think the Supreme Court ruling on the veto changes the operation of the Act in any way?

  • We don’t think the evidence shows this. We think the use of the veto hitherto has been very spare, it has only been used I believe seven or eight times depending on how you define it technically or otherwise and that is the Government’s guidance on the matter, the guidance of the Coalition Government released in 2011 made clear that it has to be used very sparingly, and I think that is the way it was also presented as the bill was passed in Parliament. There was very little suggestion, if not — there was no suggestion, in fact, that it was going to be used routinely or at all against Tribunals; rather, it was presented as a counter-balance to the decisions to make the Information Commissioner’s decisions binding. In fact the appeal system that was instituted was actually presented as the bill was passed as a parallel protection for Government decision making with the veto. So in our view, that is all consistent with the Supreme Court’s decision in evidence, which found that the circumstances in which a veto can be used are very slim and given that there is just something constitutionally dubious about the views of a veto against a properly reasoned decision of a Tribunal — and also it is important not to forget the circumstances of that case, which are very fact specific, and a very well-reasoned decision of the Tribunal was vetoed in a manner which didn’t engage, which both majorities of the decision found with the reasons provided. So, in our view, there should not be anything really surprising in the Supreme Court’s decision and that is why the Justice Committee’s findings on that just simply are not dislodged.

  • We do have evidence from other quarters suggesting that the judgment has created uncertainty about the use of the veto. The judgment itself emphasised that some aspects of the legislation were not crystal clear.

  • I mean, there is always going to be areas of any provision that have aspects of in clarity and that is just — the nature of legislation is that it cannot provide full contingencies in any circumstances before the fact. Again, that is also why we have an independent judiciary tasked with interpreting in light of ongoing facts and updated principles. Again it is our view that the way in which you resolve those issues in clarity are through judicial interpretation by our independent judiciary and it is exactly what happened in evidence.

  • From what you said, you seem to agree with the Justice Select Committee that ministerial veto is a necessary backstop to protect highly sensitive material?

  • It is our view that, as the evidence stands, we oppose changes for it to be made wider and for there to be wider exemptions as well to supplement any veto. We don’t think the evidence has changed to dislodge the Committee’s finding, even though we may find the notion of a veto constitutionally troubling.

  • Thank you. Now, you do seem to accept and you say it is inherent in legislation anyway, that there is considerable uncertainty about the operation of sections 35 and 36 and the interaction with the public interest test, and you have just repeated that, where it is not clear, it is for the courts to decide. Could I just ask you again whether or not the drafting of these sections might not be a little clearer and, if they are not clear enough, this in itself could have a chilling effect?

  • I think the evidence is as it stands from people from whom you have heard evidence, such as the Information Commissioner and others, has been that the legislation broadly is clear enough. It is working well. There is a problem of a kind of selection bias insofar as the high profile decisions and the ones that reach senior officials are the ones about which a furor is generated at the ground level of Freedom of Information, the sort of requests that people day-to-day use, ordinary citizens use against councils and, from time to time, Central Government. People know exactly what needs to be done, which exemptions can be used, which cannot. There is always a danger, I think, in attempting to legislate in light of a very small number of very high profile cases where Cabinet ministers may wish a little bit of information was put into the public domain. I don’t think there is any evidence to show that any retrenchment needs to be made on the basis of those cases.

  • If, as the Supreme Court found in the evidence case, the legislation is not crystal clear, isn’t there a case for Parliament to look again at the legislation to ensure that it properly and clear reflects the will of Parliament, rather than the allowing, as you suggest relying, as you suggested, on judicial decisions?

  • Well, I don’t think those two things are incompatible. Part of what it is to interpret legislation, as Evans did, is look at the will of Parliament. There was a great deal of interpretative weight placed on exactly what Parliament intended and as I said, on the facts of the case, the veto as Evans interpreted was consistent with what was said during the passage of the bill and the work has been interpreted henceforth. So Liberty think there is this disconnect between Parliament’s intention behind the scheme of the Act including the veto, and the way it has been interpreted hitherto.

  • The Supreme Court found there was a risk of it because they thought the legislation was not crystal clear. So if the legislation is not crystal clear, I am sure it was not Parliament’s intention to legislate in a way that was not clear. Is there not a case for Parliament looking at it again to ensure that clarity is achieved?

  • I say let’s look at what the Justice Committee found in Parliament about the legislation. At a time where any reasons for thinking the legislation was not crystal clear in my view would have applied just at that point and they said there is no case for making any change.

  • Quite. But the Justice Committee was before the Supreme Court decision and indeed the Justice Committee said the veto was an important part, if I remember, of the -

  • Precisely, and that is what we say that the Supreme Court’s decision is not inconsistent with. What was said by the Justice Committee, the veto remains, its use will be sparing, there is, as was recognised all through the last decade of the Act’s implementation, the veto can only be used in a small number of cases very, very rarely. That is why we say there is no real change since the Justice Committee’s finds to displace them, including in relation to a veto.

  • Thank you. Earlier in your evidence, referring to the Evans case, you describe I think the Government’s behaviour I think as Constitutionally devious?

  • Sorry, I misheard you. What is the dubiety you are referring to, bearing in mind that there is an issue here which I am sure Liberty would wish to address, about the separation of powers and what are the legitimate roles of ministers and the courts?

  • Exactly. Just for clarity, my description was in relation to the power of veto against properly and well reasoned decisions of the Tribunals. That is quite a different proposition from the claim that the veto could never be used in any circumstances whatsoever on the basis of constitutional dubiety.

  • But can we take it -

  • What I claimed was that — and in line with the Supreme Court’s decision, that a use of the veto against the Tribunal and part of the independent judiciary with the same status in its judgments as the High Court is Constitutionally dubious and that is what the majority found. That is why the use of the veto will have to be so rare in its view.

  • Can we take it that, subject to judicial review principles, of course, Liberty would not wish to undermine the separation of powers so that neither judges take the place of ministers nor ministers usurp the role of judges?

  • Absolutely and the separation of powers cuts both ways. On the one hand Parliament legislates and the judiciary interprets it but you can — one important safeguard on the separation of powers is not allowing the executive to override decisions of that judiciary.

  • Well, it is extremely — again it is much easier to focus on particular cases and in this particular case there was no — the Constitutionality of doing so was clearly bad.

  • You cannot say never, can you?

  • In our view the separation of powers precludes an ability for the Executive to simply override decisions of the judiciary.

  • Even if Parliament legislates for it?

  • No, Parliament remains sovereign under our system and that is a hugely important constitutional principle, simply through the interpretation of legislation -

  • If Parliament had made it crystal clear that it intended a veto to be used against a judicial decision, you would still object to that?

  • At a policy level we think that would be a dangerous step to take.

  • In our system, plainly that would stand. The judiciary is unable to strike down legislation but it would be important to interpret that legislation as consistently with fundamental rights as possible and that is exactly the principle that the court in Evans used.

  • Mr Hawke, you are obviously very familiar with the Supreme Court’s decision in Evans. Do you accept, leaving aside the merits of the decision, that the effect of the decision was unquestionably and admitted by the majority Supreme Court justices, to restrict the circumstances in which the veto could be exercised where it was exercised over a decision which had been appealed?

  • In our view, the evidence over the last 10 years is pretty clear: the use of the veto is very rare.

  • That is a matter of fact. But is it not also the case, as brought out by Lord Wilson when he said in terms that the decision of the majority was “to re-write the Act”, that the consequence of the Supreme Court’s decision was to narrow very significantly the grounds on which the veto could be used where this was seeking to override the decision of a court or Tribunal?

  • If it is the case that it was understood that the veto could be used for that purpose, perhaps. But again we don’t say that that was what was understood by the use of the veto in general terms, there is very little evidence to show that that is what was contemplated in Parliament and it was passed. It was a counterpart to the Information Commissioner’s ability to make binding decisions. If it had been said: this is a veto against the decisions of the Tribunal, the matter might have been different but it was not. It was what I previously said, now in those circumstances, I think it is very difficult to say that the Supreme Court’s decision was significantly or at all really narrowed the circumstances in which people generally and legitimately believed the circumstances of the veto were available. I think the legislative history in the passage of the bill shows that.

  • Okay. We will move on to another aspect of the Act. Do you consider that it imposes a burden on public authorities?

  • I think discussion of burden is inappropriate. Think this is just simply what a government pays for in remaining open, remaining transparent and remaining accountable. It is basically a cost of running a decent Government and it is a very very small cost in overall terms, a constant refrain as many people have said, it is five times less expensive than running the Government’s public relations service which I think is a serious — that suggests something about the more we could be doing to make Freedom of Information the better in this country. So I think in those terms, is the use of the word “burden” I don’t think is appropriate. And I think there is sufficient safeguards in the Act already to stop overly costly and vexatious requests. We already have section 14 that again has been interpreted in the way beneficial to local authorities and the Government to stop disproportionately costly requests. I think that is — that provision is a targeted way of cutting costs, where it is appropriate, introducing fees, for example, would be an extremely blunt instrument. I think that is what the case of Ireland demonstrates, where 50 per cent of requests under the Act were reduced under its introduction of fees and then later they were removed, because for very good reason they were deemed inappropriate. Introducing fees just has no way of selecting between what the Government believes are meritorious requests and which are not. A provision like section 14 enables you to select between requests which are too costly, vexatious and normal requests that should be facilitated under the Act.

  • You would argue that section 14 is clear enough. Why do you think public are reluctant to use it?

  • I think public authorities would sometimes — I think on the one hand, as the previous person who gave evidence stated, there are public authorities who do not feel there is a problem with section 14 and who feel they are able to use it properly. So I am not sure the preponderance of evidence goes in favour of a review at all. Section 14 is unclear, and especially in light of a recent Tribunal decision making that has interpreted the provision favourably to those who want to block off disproportionate requests. So yes.

  • Do you think the details of the application of — the framework for requests and how they are when and how they have to be delivered is appropriate in the current —

  • As we said in our written evidence, Liberty has difficulties with the Act in the over-broadness in our view of exemption categories, the use of class exemptions where specific exemptions should be deployed or the use of a prejudice test rather than something of greater harm. There are other difficulties that could be highlighted, including the delays in facilitating requests by public authorities. But again we think that the evidence for the findings of the Justice Committee are clear, there is just no case for changing the Act at this stage.

  • Mr Hawke, thank you very much. Is that everything you wanted to say or is that — it sounded like a closing remark to me.

  • Thank you very much.

  • Introducing COUNCILLOR DAVID SIMMONDS
  • Thank you very much for coming, thank you for your evidence. Is there anything you would like to say by way of opening remarks?

  • Thank you very much indeed, Chairman. Three very brief comments by way of introduction. The Freedom of Information Act when it was brought in in many ways was not a big surprise in the context of councils, because councils have been historically an open part of the public sector. Council meetings are open to the public, anyone can come in, listen to the discussion, see what is being decided, listen to the context of the debate. Papers are available in local libraries, available on council websites. So access to information is strengthened in fact further by the ability of the public to both fill meetings, but also to see any item of expenditure over £500 itemised on council websites would hugely help. The challenge I guess is that the cost of the Freedom of Information Act, whilst globally not a big figure, can mean quite a lot in the context of some councils, so the example of Broadland in Norfolk, which is in the submission, an entire market town’s council tax revenue for the year spent handling FOI requests. And clearly you could fill quite a lot of potholes with that. So the challenge I guess is that what is in global terms a good thing can be rather a blunt instrument in the context of one individual relatively small organisation. I think finally from a personal perspective as a councillor, it has sometimes created a bureauocracy around what used to be a fairly straightforward discussion with a member of the public. So when somebody sends me an email with a question and finishes that email saying “I would like you to treat this as an FOI”, I am in a situation of saying “I could just tell you the answer to the question. I do know, and I could tell you now. But because you have said it is an FOI, I cannot tell you the answer to the question.“ I have to send it to the FOI officer who has to log it, because we are required to do that to comply with the Act, and then we have to consider whether, as a corporate body, we maintain a register containing the information which you have asked for. The response to an extent is: if you would like to withdraw your FOI request, I could tell you now, but if you wish to do an FOI request, you will probably need to wait a month, at which point you will get an email from an officer telling you that we don’t maintain a register of that information. I don’t think that is hugely helpful for those sort of light touch interactions that can take place between local elected representatives and the residents that we serve.

  • In that case, you can typically go back to the person and have the conversation that you have just mentioned?

  • I would, however once FOI has been mentioned, it feels like a genie is out of a particular box and that creates risks.

  • How would it be a breach of the Act if you simply provided the information?

  • The situation with the Freedom of Information Act, as it operates with the local authority is it has to be dealt with, it has to be logged, it has to be processed in accordance with the requirement. So the question is: does the organisation, as a corporate body if you like, hold the information which has been requested under the Freedom of Information Act? The answer may be yes or no. In many cases we simply don’t maintain in an official capacity registers of all sorts of information. So a good example would be expenses claims for councillors for hospitality. So all of that information is published on council websites so you can read it. But sometimes people will come back and say “are you perhaps getting hospitality by taking one of your officials with you and getting them to pay?“ If the council as a body does not maintain a register of that information, which it quite likely does not, because the answer in almost every single case would be no, and the answer in the financial cost would be nil, pretty much always, nonetheless, we are not allowed to say that the answer is nil, we have to say the answer under the terms of the Freedom of Information Act is we do not maintain a log of that information. That is simply sometimes unhelpful for dealing with the residents who I think quite legitimately may be asking those questions.

  • Good morning, Councillor. When you do reply, as you said you do, in the way that you suggested that you do, in what proportion of those cases does the applicant or the correspondent, however you wish to describe him or her, say “Fine, in that case if you can give me the information more speedily, without going through all the formalities required by the Act, please do so”?

  • It very much depends on who the questioner is, the purpose of the Act is clearly to cover those corporate sets of information which can be hugely wide-ranging, which some organisations will maintain and some organisations do not. So if it is one of my constituents asking a question on how much we spend on software licences, for example, as was the case recently, generally I have a relationship with them and they are reasonable satisfied with my ability to answer that question. If, on the other hand, it is a commercial organisation that wants an official answer, then they may well say “no, sorry, I am not willing to take you at your word, I want the organisation to produce the official answer” and the official answer may be: we don’t hold that information. That is one of the challenges with the Act, it creates these various different bureaucratic walls —

  • Your response would be an official answer. You would be speaking on behalf of the Authority, so it would be an official answer?

  • But not within the terms of the Freedom of Information Act.

  • I am not sure whether the Act does require that, but that is very helpful. You have also very helpfully in your evidence submitted a number of detailed proposals for amendment of the Act. And I am not going to go through them all with you, but hopefully, those details will make my questions shorter than they otherwise would have been. Are you able to give me — can I ask you a general question, forgive me — any sort of general description of the kind of information that your members want to protect using section 36?

  • Yes. I am very conscious we have experienced ministers in top levels of Government on the panel today. Those look at therefore how the experience of discussions with officials where you are looking to think the unthinkable, and as we are going through a process at the moment of very difficult financial challenges, clearly in town halls and civic centres up and down the land, councillors like me are asking officials to prepare responses to the current financial situation which will affect people’s jobs and affect important services. In many cases it is clear that once those proposals fall under the sight of the politician, the answer will be we are simply not going to do that, and we would never have considered it, but it is nonetheless something which remains an option. So I think the challenge both for officials and for politicians is to maintain in the way that already exist exists in Central Government and was referred to I think by Lord McNally in his previous evidence, the safe space in which to have the conversation about what options are, what options would be acceptable and what would not. I think the big risk at the moment, and we see this in many different walks of life, is that you can create an attitude of mind that you might describe as defensive governance, so the question in the mind of that official, or indeed that politician, is not “how do I get the very best most open and transparent piece of advice?“, it is “how do I ensure if I have to defend this in public that I have a piece of paper that suggests that I am not responsible for the thing that has now gone wrong?“ And I don’t think that is helpful. So I think the availability of a safe space in which politicians and officials can debate and discuss and make decisions and then be held accountable for those decisions, once they have been made in the public domain, is absolutely right, and in my view, the Act creates that in Central Government, but it is somewhat limited in its applicability in respect of local authorities where similar types of discussions are going on.

  • Could I just ask: what is the experience of those cases when they are challenged and when you seek to withhold the information on the grounds of a safe space, et cetera?

  • In the case of a local authority, it is really is not the case that there is such a thing as a safe space. And the vast majority of what goes to a local authority’s cabinet or executive will already be in the public domain, so with the exception of things that are commercially confidential, that would be the case. But a good example, and one which I think the ICO referred to, is the question of risk registers, which clearly are something which would fall to be made available when they are requested. And clearly the local authority, in compiling risk registers, there is a need to take account of that wider local community and the responsibilities that we have, as, for example, civil defence authorities. So a really good practical example of that is most hospital radiology departments rely on radio isotopes to undertake some of the work and they are also commonly used in university departments and some industries. And one of the risks with those is of course although they are not useable to create a nuclear weapon, they could be used by those who were so inclined to make a conventional terrorist device considerably more problematic. It is very clear from the experience discussions I have had in discussions with other organisations, Home Office, police, et cetera, that they would not be terribly keen for public documents listing the locations where all that material could be obtained by undesirable organisations to be made publicly available. So that for me is a example of a significant risk, something which needs to be very much on my radar as a local councillor, knowing that this may be something that my community and people that my organisation employs will have to deal with, but which in that discussion with those other organisations is unlikely to find its way in the risk register. Whereas the creation of a safe space where that can be logged, so that should an incident occur it is clear from the Government’s point of view, it is clear from those trying to deal with what happened and the response, what happened, how it was planned and how it was dealt with, would be helpful, but publishing that information would in the short term I think be regarded, particularly by those other organisations with a very legitimate point of view, as not in the public interest.

  • But would you not think the Act as it is currently drafted provides the protection you needed in that particular circumstance?

  • I think it is clear from the responses from councils up and down the country that they feel, no, it is not. That although -

  • The public has to be.

  • In the vast majority of cases, around half the requests that come in are for commercial or journalistic purposes and the remainder being from members of the public and other organisations, but it does to me lead to a lack of clarity where a safe space, it would be abundantly clear that this was a context in which those discussions could take place and all parties knew that those conversations were taking place on a basis that was confidential.

  • But to answer Lord Burns’ question, that has not been tested, so you cannot say that the Act that is currently drafted would not provide the protection that is needed in the particular circumstance you have identified.

  • I think the lack of certainty has created such a lack of confidence in sharing information in some cases that things that, in my view, should be written down and recorded but should be maintained as confidential for the time being in the public interest are simply not being so, and therefore an exemption in the way that it applies to Government creates the opportunity to have those conversations and once decisions have been made, politicians can then be held accountable for them.

  • But it has not been tested.

  • That particular example has not been tested, no.

  • Okay. In terms of the qualified person requirement, you express some doubts about the need for that. Does it give any benefits, could there be any disadvantage in removing it? What is your opinion about that? Would you like to elaborate on that?

  • The submission which has been sent in talks about this in a bit more detail. I think the key concern I guess from a council’s perspective is to make the process as simple and as straightforward as possible. The Information Commissioner said in his submission and his evidence that the organisation does not have the capacity to provide a lot of support which perhaps would be useful to organisations that are subject to the Act and so, if some changes to the situation with a qualified person would help that, then it would seem to be an appropriate way forward. But beyond that I do not have a great deal to add to what is in our submission.

  • Many of your members you say have expressed concern about requests made by commercial bodies for financial advantage. In your evidence, you suggest that applicants should identify the public interest which is relevant to their request. Do you think that would be a — how would that work and do you think it would be a sufficient protection against what you regard as unjustified requests made for commercial, as opposed to public interests?

  • This body has been very keen to have some practical suggestions about things that might be done to improve the operation of that, and that is one of the things that might help. So we know around a quarter of the FOI requests are from commercial organisations and what they are invariably asking for is tailored versions of information that is already in the public domain. So the council website will contain the itemised list of expenditure but they are asking for that to be reformatted in a way that enables them to demonstrate that their product is cheaper or that they think they can make a particular saving, or that they are more competitive than another company, or indeed to contribute to the creation of content. I have personal experience of this in the IT and software area and you can see that is what it is designed for. I think the concern that councils have is when you calculate what that costs and the example given the round-robin requests were sent to 200 councils, taking 15 hours each to process. Taxpayers picked up the bill of £75,000 to deal with that request, and that is just to deal with the request. That is tabulating information that is already in the public domain into another format for a commercial organisation. I think the concern we have is that it is hard to say that one business’s commercial agenda constitutes a wider public interest and therefore there needs to be some form of filter.

  • The same information that has just been reformatted?

  • It is exactly the same information, I think we all know context is all when it comes to information. But a very practical example with IT, councils all publish their expenditure over £500, so looking at that register, you could off your own initiative, as a researcher from an IT company, identify what that council is spending on software licences. However, many of those businesses say: rather than going through the council website, I am going on send an FOI request asking them to tabulate that information so I just get a nice easy figure.

  • Why don’t you say the information is already available?

  • Because, again the requirements of the Act is the provision that — I am just trying to remember the terminology: the form acceptable to the applicant which the local authorities are required to comply with. So in that situation if the applicant says “I don’t want to read it on the form that is on the website, I want it put together in a table like this”, then the applicant is able to ask that.

  • Has that been tested?

  • That one has certainly been the subject of extensive testing and, as far as I understand it, it is absolutely clear that the local authority is required to.

  • Are you saying that when that has been tested, the word “reasonably” has not been applied into the question of format — reasonably acceptable to the applicant.

  • “Reasonably” does not form part of the wording and I don’t have the full detail in front of me but I know the phrase, there is a whole series of provisions but one of them is the right of the applicant to request the information in a format acceptable to them. This is where a great deal of the noise in the system I think around commercially driven requests arises.

  • Isn’t there a bit of a confusion in what you have told us because your last answers have criticised requests for information made where the information is already available. That is one category. Information that is sought for commercial reasons is a separate category, they may overlap but suppose the information is not available already, albeit in a different form. Do you still regard it as objectionable that it should be sought for commercial reasons? After all, if that information enables the service to be provided more economically or more effectively, isn’t that a public interest?

  • I don’t think there is a contribution, I think there are a number of different categories of information but I think addressing the specific question, what is clearly happening is a commercial organisation is moving on to local taxpayers the cost of research in the pursuit of their commercial objectives -

  • That is only the case if the information is already available.

  • Yes, so the register — in terms of councils’ publication of information, as I touched on at the beginning, councils are extremely transparent organisations. So that information is published, but what we are seeing is organisations that are saying: rather than use my organisation’s resources to put that into the form that suits my particular commercial purposes, I am going to ask the taxpayers to meet the cost of having that work done for me.

  • Does that mean — and I want to try to get this absolutely clear — that you would not object to applications that are made for commercial reasons, if the information is not otherwise available?

  • Well, if the information is not covered by the organisation, then -

  • If it is not held by the organisation then the Act does not apply, but if it is held by the organisation, but is not otherwise publicly available, but is requested for commercial reasons, do you regard that as objectionable?

  • I think this is another one where context is all because it leads into a discussion about redaction and the cost of that.

  • Not necessarily, that would be a different objection, if you are talking about redaction, of course that is a different objection. I am trying to pin down whether your sole objection is that the information is needed for commercial reasons or you would not object in that category, that is what I am trying to get your view on.

  • I think the issue of the information being used for commercial purposes is not to me in any sense a bad thing. What is concerning is someone saying: I have that information freely available to me -

  • We have established that, thank you very much.

  • I want you to pay to put it in a better format that is more commercial for my own purposes.

  • The same surely goes to round-robins: you cannot object in principle to round-robins because they are an effective way of comparing performance?

  • And I don’t think there is any principle objection to any of the elements of the Act. As I say, context is all and one of the issues with round-robins is whether you get the context that tells you the true picture of what that information is intended to tell you.

  • Can I ask the LGA possibly to go back and write to us about the effects of section 11 of the Act in relation to the answer you gave about giving information solely in the way the applicant requests? Because I must say it sounds to me, looking at section 11, and the guidance given by the Commissioner, as though you are a pretty soft touch and ought to tighten up your act somewhat and let us know whether really what you have said is exaggerating the position.

  • I will be pleased to check that, it certainly is — that is the strong view that is reflected in the research that has been done by member authorities.

  • That brings me to my next question which is: Why don’t local authorities use the power to refuse vexatious requests more frequently?

  • We do, but I think the issue that is referred to as much as anything is not so much the vexatious individual requests, it is the vexatious questioner who sends in a request saying: how many members of staff do you have whose first name begins with A, how many whose first name begins with B?, and when challenged says “I am entitled to ask this information under the Act”. I don’t think in the grand scheme of things the cost of that is huge, but it is a cost that falls on taxpayers and I think it is that issue of how you identify someone as a vexatious questioner as opposed to whether an individual question is vexatious, which is probably of most concern to councils.

  • How much use is made of it, vexatious requests et cetera?

  • It will very much I guess depend on what the question is and extent to which the person is known to the individual Freedom of Information Officer who is responsible for dealing with it, and I guess that would be true of any organisation. So there are some requests for information which might be seen as either manifestly vexatious or extremely frivolous. Lots of examples have been talked about. One of the most recent ones was a request to know how many exorcisms had been paid for by the local authority in public buildings in recent times. I am sure that is of great interest to people compiling stories for the inside pages of newspapers, however it is hard to argue that is something which is worth spending a lot of taxpayer’s money answering. I guess where they become more complicated questions is where you have a small number — it is a small number — of people who seek to use their freedoms under the Act to ask any question they can possibly think of on the basis they feel the local authority has to answer it, but the individual question may of itself not amount to much in terms of answering, but if there are 10, 20, 30 of them coming in from the same individual every week, the cumulative workload of that for a particular public body may be quite substantial.

  • Would the vexatious request exemption be used in that situation?

  • As I understand it, it refers to the individual request and not to requests, so the authority would not be entitled to refuse the request on the basis that the person had submitted many hundreds of like requests for no obvious purpose in recent times.

  • That is a good question and I think we could write to you and let you know what the position is on that.

  • Finally I would like to ask about the very interesting suggestion you make in your evidence which is that the Information Commissioner should engage in a dialogue with local authorities prior to his issuing a decision. How do you think that would work in practice, how do you suggest that would work?

  • That is the practice that is already operated by OFSTED, the Care Quality Commission, many other regulatory bodies in this context. And the advantage of it essentially is to avoid some of the misunderstandings that have happened in the past. There has been an issue of the capacity, the Information Commissioner, I think they acknowledge that they have that lack of capacity to engage as widely as they would like to. On those occasions where it is clear that perhaps a judgment will have consequences for the wider sector, for example, which should be prepared for, or where a judgment seems to be somewhat at variance with what was previously expected, the opportunity to engage in a dialogue, and if necessary if there are things still in dispute, correct those, would seem appropriate. That is why, when OFSTED or CQC, gives a judgment, whether adverse or negative, they will say: this is what our judgment is going to be, there is an opportunity if you think there are errors of material fact, for example, where you can tell us that and we will have an opportunity to consider that before we make a public statement about what has happened.

  • Thank you very much for your evidence and, I hope you will see, we have been particularly interested in those specific cases which you have mentioned which indeed it is very helpful to have your evidence, I think the push-back that we are putting is: to what extent are councils and other public authorities actually using the exemptions and abilities that are within the Act in some of these cases? And that is what, if possible, we would like more evidence on.

  • If I were you, I would be asking the same questions. Thank you very much indeed.

  • Thank you very much.

  • Introducing MS NICOLA DANDRIDGE
  • Good morning and thank you very much for your evidence and thank you very much for coming to see us. Do you want to say anything by way of introductory comments?

  • I would like to make a couple of points, if I may. Thank you for inviting us to contribute to this evidence session, first of all. But before moving on to those two points, can I make a more generic observation that, overall, universities who we represent are absolutely committed to the overall aims of the FOI legislation openness and transparency. It is its application and its application to universities that we have reservations about. That commitment to openness I think is very evidenced by the fact that in the UK, universities are pretty much in the forefront globally in terms of open access to research and research findings and working out ways in which that research can be shared in appropriate ways publicly, but certainly in comparison with many of our international competitors. Likewise there is a massive amount of work going on now in terms of communicating relevant information to students and potential students. A point I will come back to: that whole process now is being very closely overseen by the Competition and Markets Authority. We have moved since the 2010 legislation into an environment where universities are operating in markets, in a very competitive market. So as a consequence of that, a lot of information is put into the public domain and that is entirely appropriate and universities totally understand why both that is necessary and desirable. But the two points that I wanted to make for the purposes of our evidence relate to primarily the burden and bureauocracy that the Act requires, but also the point I touched on there that is the sector has changed so much since 2010 and it therefore is now our case that the application of FOI is no longer appropriate in its current form. But firstly in terms of burden and beaurocracy, the reality is that universities are extremely heavily regulated already in terms of the information that they have to disclose, not just the information to students that they are required to make available, and to potential students as well, in response to CMA requirements, but they have to disclose information to the funding council in all the UK jurisdictions, to higher education statistics agencies, the Quality Assurance agency and the various professional bodies, et cetera et cetera. There is a lot of regulation and a lot of disclosure that takes place and research undertaken by JISC, which is the higher education body responsible for digital services — we put a link in our submissions — shows the cost of FOI compliance is increasing quite substantially and the Government’s own estimate, possibly now marginally out of date, is that it costs £10 million a year to comply and the FOI requests are increasing all the time from just three per institution per month in 2005 to 18 per month in 2014 and that evidence is provided in the link. But my second point, which is perhaps a more fundamental one, is the extent to which the environment has changed in England since the higher education legislation was introduced in relation to tuition fees in 2010 that came into force in 2012. That manifests itself in terms of a deregulated market for students, this is the vocabulary that is now applied to universities, but also the introduction of alternate providers, non traditional universities, researched by BIS in 2013 suggested there were over 670 alternate providers with about 160,000 students and those are likely to be minimum numbers. Anyway, it is now out of date. As a consequence of that, in the recent BIS Green Paper, there was a representation that this whole area be looked at. I am just concluding but would you just permit me to read the paragraph from the Green Paper because it is so pertinent? It talks about public body requirements and the anomaly between the requirements on so-called traditional universities that previously were directly funded by Government and alternative providers, and it comments that the alternative providers are not subject to FOI. In that context, it says: “There are a number of requirements placed on HEFKEY funded providers [that is the traditional universities] which do not apply to alternate providers. Many derive from treating HEFKEY funded providers as public bodies. This is despite the fact that the income of nearly all these providers no longer principally comes from direct grant and tuition fee income and is not treated as public funding. Alternate providers are not treated as public bodies. As a result there is an even playing field in terms of costs responsibilities. For example, the cost of providers as being within the scope of the Freedom of Information Act is estimated at around £10 million per year. In principle we want to see all higher education providers subject to the same requirements.“ So it is flagging in the Green Paper itself that there is this anomaly now and we would say that this reflects the fact that at the time that the FOI legislation was introduced, we were talking about a very different sector in England. Now we are operating in a highly competitive environment, a consumer market which is now controlled very much by the CMA. We are in very close touch with them and with associated bodies and despite the fact that there is very little direct State funding, we are yet treated as a public authority. To conclude, we believe the way forward on the back of the Green Paper is to see a full review of the operation of the Act to higher education institutions to ensure that the application is appropriate but also that there is a level playing field. There are a few technical adjustments in the meantime which we have set out in our paper but I will not go through them now.

  • Thank you Ms Dandridge. You mentioned that there had been a seven-fold increase in the number of FOI requests per institution between the start of the operation of the Act in 2005 and today. Two questions: one, would you accept that that is an inevitable consequence of people just getting used to the Act? Secondly: could you give an idea briefly of the kind of range of requests that come in, different categories?

  • Yes. This is detailed in that JISC report that I flagged and they fall into three broad categories.

  • You could send it to us.

  • Student issues and numbers is the largest, followed by HR and staff issues, followed by financial information — sorry, this is what the requests relate to. So it is students, HR, restructuring tends to give rise to quite a few, and then financial information. We can submit that because it is quite detailed and quite granular in terms of the evidence.

  • Thank you. You say in your evidence that — this is on the second page of your evidence — the Act should be changed or we should consider the change, so that in future the Information Commissioner should be able to express a view on the exercise in of the public interest discretion but not to order it with requesters being able to seek judicial review of an institution’s decision. Do you accept that if that were to be the case, it would profoundly change the operation and the structure of the Act and fundamentally weaken it?

  • I don’t think that was the intention behind this particular comment.

  • It is a proposal rather than comment, isn’t it?

  • Let me just find it — this relates to section 36?

  • I accept that paragraph is not particularly well drafted. What we are trying to get at there is simply the removal of the head of institution, that whole layer of internal review from the process. So then it is a much more objective test.

  • Not proposing basically to go back to the John Major code sort of legislation.

  • That was not the intention.

  • That is a useful clarification. Can we go on to this issue of the alternative providers and your claim that “the playing field is not level”? What proportion of full time equivalent courses are currently being delivered by providers who are outwith the FOI Act?

  • That data is not known, it is not simply that we don’t know it, it is not known because there are all manner of providers now operating at various different levels -

  • 1 per cent? 5 per cent?

  • It would be more than that. Of the ones that are known, it is a low base and I will get back to you on this, but I think it is roughly around 10 to 15 per cent.

  • Which kind of institutions are we talking about? Could you name some, please?

  • They would largely be for profit, some of them international. Greenwich — not London Business School, the London School of Business and Finance, there are various management schools, quite a lot of them business orientated. Can I let you have that because I am being a bit vague as to what their titles are but there are a lot of for profit providers now, some of them national and some international.

  • You are confident that taken together, these providers are providing around 10 per cent of total -

  • I will need to get back to you on the figure.

  • It sounds to me a rather significant overestimate. Even if we were to accept that there was a case for a “level playing field” between authorities which are still significantly funded by the public sector by one route or another and these commercial providers, aren’t there two routes by which you could do this: one is to exempt the universities and the public providers, for which I may say we have had no other evidence and I think there is no prospect of this happening, or to look at whether these private institutions are standing in the shoes of public institutions, and they could be covered by the Act?

  • Indeed you could approach it either of those two ways.

  • Have you given any consideration to the latter?

  • I think our primary point is that there should be a level playing field. We would be more — as I say, I mean there is not a desire to lack transparency, so I think we would do that anyway. What we are proposing is that there should be a review as to the application of the Act. That accommodates the different environments which takes into account the circumstances both in terms of the providers and in the traditional providers.

  • Let us say the playing field stays uneven, that the regime for public authorities, including universities and FE colleges and the rest, remains within the Act and these entirely commercial providers are outwith the Act. How does that harm the position of public sector FAG institutions, what is the damage done?

  • The damage is that it is an extremely competitive environment for students now and they are subject to bureaucratic guidance that other players in that market are not. So by virtue of having an unequal playing field in —

  • I am trying to get beyond the cliche here.

  • It is the cost, the fact they are having to disclose information about their operations that others do not have to.

  • But I mean the cost is all together you say 10 million a year, which is £144. 93 per enquiry which is not back-breaking, I suggest. But in terms of the disclosure of information, what kind of information is a public sector university being required to disclose which is damaging its competitive institutions? So let’s take London School of Economics, Oxford University, University of Central Lancashire: how is their competitive position been damaged by a disclosure of information, even though it may not be required to be disclosed by a competitor?

  • Well, let me give an example -

  • That is what I am seeking.

  • — of evidence I gave last year to a Tribunal, the Tribunal, which related to disclosure of academic salaries. The case related to primarily disclosure of non-academic salaries at a senior level and the reason that that was resisted by the university was that it felt that these were very competitive roles where it was difficult to recruit these members of staff operating in a very competitive global context, for example heads of fundraising is a good example where it is extremely competitive to get these people, and there was a requirement to disclose that data about their salaries. It was felt that it was damaging to have to reveal the salaries because it would put people off coming to the UK to apply for these jobs and there was quite a lot of evidence as to the impact that it would have. This just taking staffing. If you have to disclose lots of issues around restructuring, it perhaps constrains the operation of the institution in a way that simply would not necessarily be the case for alternative providers who are not subject, but nonetheless possibly recruiting for the same members of staff.

  • We are narrowing this down to fundraisers which is a very specific task. Would you accept what is my experience certainly of all the large number of academics working for universities that I know, they are acutely aware, acutely aware, of not only what they are paid but what their comparators are paid, particularly in American universities if they have an internationally tradable subject or skill. So they know this information, how would keeping it from the public help the competitive position of — so the faculty at Oxford who are notorious for paying less than say an Ivy League in the States where they trade on the fact that they have other advantages, how does this make a difference?

  • A lot of that information — for commercially sensitive roles where the salaries are protected, the institutions feel they have an obligation not to disclose that salary, so it is not all in the public domain. We are talking about a small group of people, the majority of salaries are in the public domain, I agree.

  • Can I just focus on a specific example which may be helpful. If I am a parent and I have a child who wishes to take a legal practice course, that child can either do it at say, the BPP law school, which is completely private or the University of the West of England, which is a public university. Isn’t it an advantage for the University of the West of England, if it be a real example, that I as a parent know that that university is subject to Freedom of Information, therefore I can find out more about the university to which I may have to pay substantial fees to my child to go? There are two sides to this, aren’t there?

  • I think that is a very good question and that is absolutely the circumstance where we would want to make sure the information was publicly available. That is why I started by saying there is no issue about that, we are engaging very closely with student groups, with the CMA, with others to find out what information is most used, and there is absolutely no appetite to keep that information away from students and their parents and potential students. I think that is the sort of example where, come what may, we will want to make sure that that information is in the public domain —

  • Forgive me for interrupting, but the corollary to that it is really up to private providers whether they wish to put that information out to the public or not. If they don’t, they may be suffering a disadvantage.

  • But you are choosing an example where we would not wish to not disclose that information, that is information where it is very obvious it should be in the public domain. We would want it to be in the public domain. The CMA would require it to be in the public domain and because we are operating now in a competitive market, it makes every commercial sense to make sure it is out there. So that example is one where we would want to continue making the appropriate information available and indeed there is a lot of discussion and resource going into thinking throughout how the information could be made most pertinent, most relevant and most accessible. So I don’t think there is any dispute about that.

  • That is I would want you to follow up, you say quite a lot of these requests are coming from students. What is it that you are not publishing that the students want to have access to and what is it in terms of their requests that you regard as damaging to the operation of the university?

  • I think that is the area where there is less dispute that the information should be in the public domain. Having said that, I know quite a lot of applications relate to admissions decisions and areas like that where there may be sensitivities and legitimate reasons why it is not appropriate to disclose why someone has not got in against someone else, for example. But I think that is on the margins, I think generally that information should be out there and that is not an area where we are really concerned.

  • Could I quickly take you to something else you said in your evidence? This is also on page 2 of the written evidence. You say: “Uncertainty over the determination of the public interest has very likely led to changes in practice in terms of the recording of decisions, for example minutes will tend to record decisions only rather than discussion and information that is in discussion papers is not being produced in the minutes.“ I don’t quite follow that, because if you had an agenda item and you have had discussion papers to contribute to consideration of this agenda item, then whether or not you put the discussion paper in the minutes, the discussion paper itself will be disclosable under FOI, unless there is an appropriate exemption for it. So are you not actually denying public and students information that ought to be made available to them.

  • It could well be. I think for the general point in that paragraph is that the Act potentially has a distorting impact on the way in which decisions are recorded and I don’t think we are making the more sophisticated response that you are -

  • I am going from what it says, rather than guessing.

  • I think the point is -

  • Isn’t it somewhat of an open goal in terms of the efficient running of an institution that you should not be recording correctly decisions that have been taken and reasons why those decisions have been taken because people in the future will want to go back and examine those decisions.

  • I think that is absolutely right. I don’t think there any suggestion that the decisions are not being accurately recorded. I think it is more -

  • The reasons for them but the background analysis.

  • Of course. I think it is more a generic comment about the dampening effect of the legislation, it is not a significantly significant point, it is a fairly self-evident point.

  • Well, thank you very much.

  • Thank you. MR PETER Mc

  • Introducing NAUGHT
  • Good morning, Mr McNaught, thank you very much for coming. Do you wish to make an opening statement?

  • Just very briefly really to set the scene to HSE’s attendance to give evidence today, because perhaps not known by many people who do not read the statistics in relation to FOI requests, HSE receives more requests than any of the other 41 public bodies who are reported on. The simple reason for that is that 80 per cent of those requests relate to information requested mainly, if not exclusively, by parties to civil litigation for information relating to HSE’s investigations in relation to work-related injuries and deaths. Those investigations can vary between a very brief investigation that takes very little time and produces very little information and documents to a very major investigation and because of issues of data protection, because of issues of sensitivity, and because of issues potentially of confidentiality, every request has to be carefully assessed to decide whether there are competing interests in terms of disclosure. Of course, disclosure in any event is only actually wanted for the purposes of those civil proceedings rather than to be put into the public domain. It is the burden therefore of that process that, perhaps, rather individually, perhaps, affects the Health and Safety Executive that is of concern in relation to the operation of FOI Act. We estimate that we the resources required to do that on the MoJ survey indicates costs of about a million a year. In reality, the cost is probably larger than that because it doesn’t take account of other accommodation and IT costs. So quite a significant amount of HSE’s resource is put into dealing with requests which essentially we take private interest in bringing civil litigation or defending a claim. We recognise, of course, that it is important, and a public interest in itself, that parties to litigation and indeed the court have available to it all the relevant information, simply that it is a cost that perhaps should not be borne by a public authority.

  • Could I ask, before Lord Carlile speaks, do you publish automatically all the questions and all of the answers that you give in relation to the requests? Are they publicly available to everybody or do you simply give the answer to the person who has asked for it?

  • In relation to these we just give it to the person concerned. Where the request is of wider interest, then we publish our responses. But this is a singular request in relation to a singular investigation that is only of interest to the individual requester in reality.

  • Mr McNaught, before I ask you some questions, I should declare a somewhat historical interest of having appeared in countless personal injury cases, mostly industrial accidents, on both sides though generally not at the same time. Now, as a body which receives a significant number of FOI requests, I would like you to give the Commission a sense of the sort of requests you receive and in particular, and I think you partly answered this already, I would like you to tell us the extent of the crossover with — and I am using my words carefully — disclosure which occurs in civil cases. Also it would be helpful for us to know whether FOI requests interfere with investigations by the HSE or in the recording of investigations by the HSE?

  • I might take those in reverse order, if I may?

  • Because they don’t affect the recording of the investigations, we obviously record all the product of our investigations, we have to, it is important for any wider purposes but particularly for any criminal proceedings that we have clear records of every aspect of the investigation. In relation to prejudice to the investigations, our general approach is that prior to the completion of an investigation and/or any associated criminal proceedings, we will decline disclosure under FOI using the exemption under section 30 and we are successful and the Information Commissioner has supported that approach. That does not mean that we don’t get requests during that period and, because our investigations can be somewhat lengthy, there can be a number of requests asking us again whether our investigation is yet complete. Sometimes, if an investigation is very long, there can be the issue of the claimant is approaching the time limit for bringing proceedings -

  • — which can bring an extra issue into play. Once proceedings have been concluded, then you are absolutely right, there is a crossover and a link with the disclosure regime in civil proceedings. The rules in civil proceedings do not allow for a third party application disclosure prior to a claim being brought and now, obviously, the civil courts are very keen for cases to be resolved as soon as possible and before any claim is brought so we get a lot of cases where the request comes in before the claim has been brought, sometimes we will not know the stage of the case. But in some cases, even where we provide disclosure, and what we do is we look at for instance, witness statements, we will write to each witness to ask them whether they will consent to disclosure of their witness statement for the purpose of the proceeding action, we might not get a reply, we might get no consent. That information would not be disclosed. And then subsequently there may be a third party application for disclosure to be made through the civil courts which we will have to respond to separately.

  • Leaving aside section 30 which you appear to be satisfied with as giving you an exemption for the period of an investigation that might lead to criminal proceedings, what really is the problem about FOI once that section 30 exception is inapplicable? Because you are going to have to provide the information to solicitors anyway, at some point, aren’t you, so doesn’t the FOI process avoid substantial legal costs enabling potential parties to know at an early stage information that may well, say, for example, the Legal Aid agency or funders, substantial sums in deciding whether cases are worth bringing?

  • It is the cost of the process. I accept absolutely that the parties have an interest in obtaining that information. Sometimes they may already have the information. So sometimes, for instance, an employer, and the solicitors acting for the insurance company, will request all information which has been obtained during the course of our investigation, most of that information will have been obtained from the employer themselves if they already have it. They are looking to effectively ensure that they have everything. But it is the cost of the process in terms of dealing with whether there are issues in terms of that issue in itself, for instance. So if an employer may take the view that when they have provided a copy of a risk assessment to HSE they have provided it for the purposes of any criminal proceedings, not for the purposes of any future civil proceedings.

  • Has anyone done a cost comparison or a cost benefit analysis as between the provision of information under FOI by the HSE and the cost of going through legal processes to obtain the same information? Because there may be a suspicion that the FOI regime in sheer money terms is much cheaper, albeit you have to pay it.

  • Probably the reverse in fact because if we receive an application for disclosure before a civil court, unless there is any particularly sensitive information which we do not want to disclose, such as perhaps our analysis of the case, we would not object to the order being made, so it is a very simple process, usually dealt with without a hearing. The problem for us is that the fact that there is such a process does not prevent any requester requesting that information separately and relying on the Freedom of Information Act.

  • I understand what you are saying, but the answer you have given does not take into account the cost of the legal process in asking the HSE to make the disclosure, does it, which may be charged out at £150, £200 an hour legitimately by lawyers?

  • Most of the requests we get under FOI are made by lawyers.

  • That is not surprising.

  • I declared my interest already. What controls do you think are needed, if any, to reduce the burden and, in particular, do you feel the controls should be targeted at the particular types of request, for example commercial requests or requests routinely asked by solicitors who may be very experienced in dealing with personal injury cases and nothing but personal injury cases?

  • There clearly is a difficulty in terms of deciding to move away from the request of blind principle, but equally our experience of the burden on the HSE is that it is difficult to see the sort of wider public interest that is being served by the resource that we put into providing the information in these types of case and I recognise, and having seen some of the evidence, there could be other cases and other public authorities who receive requests which are, perhaps, somewhat similar in terms of having more of a private motivation behind them than a wider public interest.

  • Can I press you, do you have any proposals to make on this? Is it by identifying the particular kind of requester —

  • It could be done by identifying particular requesters but I understand the difficulties with doing that. So the alternative solution could be in terms of cost. So, as I indicated in my opening remarks, HSE recognises the need for the parties in these proceedings to have this information, it is the cost to HSE and therefore the public purse which is the issue and at the moment the appropriate limit, for instance, being set at £600 and effectively 24 hours of work, most of our cases do not go that far, but they may not be significantly below that. So we very rarely, if ever, can charge and, of course, the charging regime does not take into account the time of the people actually doing the work. It is just the limited costs are that allowed under the regulations.

  • Can I move on now to the exciting subject which you have given us evidence about of ICO decision notice FS50121354. You have provided significant evidence on this subject. How many of these issues arise per year and what is the actual cost of dealing with them?

  • Issues in terms of?

  • In terms of decisions made applying — I will not repeat it — that decision notice. What is the cost of that decision notice and its consequences per year to you?

  • That decision notice essentially means that where the investigation has been concluded, we take the view that a refusal to provide the information requested will not be supported by a decision of the Information Commissioner because he will take the view that the public interest is in transparency and that information being in the public domain, so of the 5,000 requests that we deal with, about 4,000 relate to civil proceedings and a number of those will be dealt with when the proceedings are still ongoing but there will still be a significant number, probably in the region of half that figure, where we will have carried out a significant investigation, so about 2,000 a year, and we will consider that we have to deal with that under FOI, that we cannot decline the request, and we have to then balance these other issues in terms of personal data, confidentiality and other issues to apply other exemptions which might apply to some or all of the data.

  • I am trying to tease out what is the net effect on the HSE of ICO’s decision notice FS et cetera in cost terms.

  • In cost terms, if that decision was the other way and said “All that information is not in the public interest to disclose it” whenever the investigation has been concluded, we would not disclose in 80 per cent of the cases that we received, so 40 per cent of them, 4,000 of them, we would be able to rely on that exemption.

  • So there is a considerable cost saving as a result?

  • Thank you. I wanted to ask you now about the use of the vexatious provisions in the legislation. I think we absolutely recognise for an organisation like the HSE where many requests will relate to specific accidents, it must be quite difficult to say that they are vexatious, but given that you are in receipt of so many requests, more than any other body that has been referred to, as you said in your introduction, how easy is it for you to use the vexatious provisions and are you reluctant to use them because of inherent difficulty?

  • We have used the provisions in other types of requests that we have received.

  • Interestingly we dealt in a case with other Government departments where a number of requests had been made to a number of departments and where the Information Commissioner supported the fact that a number of different requests, a number of different departments could be aggregated to determine that the request was vexatious and that went on appeal and that was supported as well. But in this context, as you have highlighted, we do not consider that we could say that the request from an individual claimant or defendant requesting information about one of our investigations was vexatious unless the amount of work required was so significant — in the recent Upper Tribunal case where the Tribunal considered this, the public authority was talking about three weeks’ worth of time to deal with the request. Ours generally are not that excessive, but they are several days of work sometimes to deal with it.

  • We will come back to the vexatious provision in a moment, if we may, but how do you deal with situations where, yes, you have got a lot of information, the HSE almost always does, because you carry out thorough investigations but most of it is available somewhere else?

  • Generally, most of it will not be available somewhere else, because it will be information that we have gathered as part of our investigation and therefore hold. Some of it may be available in that the employer will have it, but it certainly will not be publicly available, very little of it.

  • Returning therefore to the vexatiousness issue, is it the view of the HSE that vexatiousness sets too high a standard and that you would prefer to have a test which is based on something more like reasonableness or proportionality?

  • Certainly the guidance as I think was alluded to earlier, has been amended more recently and that is helpful. I think it could go further in making it easier to reject requests on the basis of vexatiousness, I don’t think however it could ever go as far as it was to deal with the specific issue that we are dealing with, which is more to do with what is appropriate in terms of charging and fees for provision of information.

  • Can I turn to section 36, then, just for a moment? Presumably you rely on section 36 to protect information relating to internal deliberations which are inherent in what your executive does, because you are making decisions, for example, whether to prosecute somebody for quite serious offences. How effective is the section 36 exemption and would you as the HSE like to make any changes to it?

  • We don’t actually use section 36 in those circumstances because that deals with development of policy so we don’t think that would be covered in deliberations that we have about decision making on enforcement action. We would then use section 30 where we would say that the public interest then goes in favour of protecting that information for the reasons that you have alluded to. But we very rarely — although we do have a policy function, we recommend regulations to the minister, the Secretary of State, who then makes the regulations, but very rarely do we get requests or do they cause any difficulty where we are having to do that, section 36.

  • Sometimes you are faced with industrial diseases in particular that may have arisen in very large numbers in a particular industry. Pneumoconiosis is a very obvious example but there have been many others. Are you caused any particular difficulties by situations in which there are group actions or the equivalent of group actions?

  • I can’t think of any and generally we have a very strong scientific base and we have a health and safety lab that does a lot of research into exactly these sort of issues and a lot of that information will be put into the public domain in any event as part of scientific research material.

  • Thank you very much. Is there anything you would like to say by way of concluding remarks or are you content with that?

  • We have covered everything I wanted to raise. Thank you.

  • Thank you very much. I think we are going to adjourn now until 12.30. (12.00 pm) (A short break) (12.25 pm)

  • Introducing MR CHRIS HOPSON
  • Good afternoon. Thank you so much for coming to give evidence to us. Is there anything you would like to say by way of opening statement?

  • Yes. So I am the Chief Executive of NHS Providers as you know, with a membership organisation and trade association for the 238 hospital, community mental health and ambulance trusts and foundation trusts. I am not an FOI expert. I am here as an advocate for the views of our members that we have gathered together for this session. Just to give you a very brief quick overview about how our members see this: so we spend I think a tenth of 10 per cent of public expenditure, so £75 billion goes through our members, and I think they recognise the need for public accountability on the back of that. They work very hard, I think, at publication schemes, open board meetings, huge amounts of NHS data published. I think there is widespread support amongst our members for the principles of the Act as an important mechanism to exercise public accountability and I think they support the idea of members and others asking legitimate questions. However, they tell us that particularly recently, they are experiencing a very rapid growth in the number of questions of particular types of questions from organisations that the Act in their view never envisaged and that this is placing a very disproportionate impact on them and I think they believe this Commission provides a very well-timed opportunity to address that. So just to very quickly talk about some specifics, if I can give you six examples, I think five and then there is a sixth which is more questionable, of examples where they believe they are being place under a disproportionate burden. They are finding they are getting very significant number of FOI requests from people who are commercial companies who are just solely looking for names so they can then create databases of names and they can then be sold to third parties or they are used for marketing material. The second is they are getting very significant numbers of requests for what is clearly commercial information from suppliers who are seeking to effectively end run round procurement processes when that information, to be frank, should be provided through appropriate procurement process. They are getting large numbers of requests from students doing basic research projects. They feel they get a number of frivolous requests. They also feel they are getting as a fifth category a number of FOI requests from complainants who have addressed their complaints through other parts of the system, had them adjudicated on but they are then kind of coming back again for further requests. There is a sixth category which I don’t want to dwell on at this point because I think it is more difficult and I don’t want to undermine the strength of the previous five categories, but effectively there clearly is an argument about particular types of requests from media organisations where effectively I think nobody is disagreeing with the idea that media ought to be asked focused questions to hold to account. I think you will have heard the use of the word “fishing trip” before, but effectively I think there is a view that they are subject to a much larger number of fishing trips. So if you ask our guys, our members, about what peroration of FOI requests come from individual members of the public and come from those categories they are now telling us the majority, the significant majority, are coming from those categories and their view is that was never intended to be the intention of the Act. They also would say to you that they note that significant numbers of those people are pursuing, seeking to then pursue appeals at various levels, through that which is also placing a burden upon them. I don’t wish to outstay my welcome in terms of opening statement, but I do have for you three sets of specific remedies that we propose to you to deal with those categories. I am happy to give them to you now or —

  • We think there are three kind of sets of remedies. The first is really around vexatious requests and we noted with some interest paragraph 61 of the FOI Commissioner’s written evidence to you where he said he would be open to strengthening the guidance on section 14, which is the section covering vexatious guidance, by putting it on a statutory basis in a special code of practice issued under section 45 and he notes this could reduce any uncertainty the public authorities may feel about the current approach and the risk of the Commissioner’s guidance being overturned by the courts. I did note, with not entire agreement, that he seemed rather frustrated with us when he said to you in his oral evidence “I wish public authorities would actually use the provisions of the Act to turn away some of the most burdensome stuff, we have clear exemptions in section 14 of the Act and we have issued very clear guidance”. If you look at the guidance actually I think we would perhaps suggest it is not quite as clear as he is suggesting. It is only effectively aimed at us as public authorities, it is not aimed at people making requests, so I think our view would be we can imagine a process where in the drawing up of the statutory code, we might all sit round the table and agree what is vexatious and what is not. And I think we would argue very strongly in that process that trawling for names, trying to circumvent procurement processes, frivolous requests and people who use the system as an attempt to pursue a complaint that has already been adjudicated on I think we would argue would be examples of vexatious — if it was put in the statutory code we would all be clear, both public bodies and people who are making requests about actually what was vexatious and what was not. So we think that for us would be remedy number 1. Remedy number 2, and again we thought paragraph 67 of the FOI Commissioner’s evidence was interesting when he said “If a change to the cost regime of FOI Act is deemed necessary, the Commissioner would support the conclusions of the Justice Select Committee that reducing the appropriate limit in the fees regulation would be the most proportionate step to reduce the impact of the FOI Act on public authorities.“ So again I think as you know, it is a current limit of £450, that translates as 18 hours’ work, £25 an hour. Depending how you define a working day, that is effectively three working days’ worth per FOI request of an individual and again, I think as you know, there is a debate about whether you are — you are not currently allowed to include the very detailed work that our members have to do on both redaction, but also crucially having the discussions around which exemption clauses to use and to be frank, it is quite often quite a technical debate about which exemption clauses should be used so. I think our argument would be that that cost limit should be reduced, I think you would ask me straight away: what would you reduce it to? I think our view perhaps would be one working day, which you might define as seven hours as opposed to 18 hours, and I think we would strongly make the argument to you that we believe that all the costs of considering these requests ought to be taken account of and that actually, you should consider the time that our members have to spend considering exemptions and redaction. So that would be our second remedy. Our third remedy would really be around appeals and I suppose when you talk to our members what they say to us is it is not just the need to kind of process the original request, it is actually then the pursuit of appeals. I think our view is at the moment appeals against original decisions seem to us to be a bit of a free good; in other words effectively if you are an applicant, actually it doesn’t really cost you very much to make an appeal and we think the bar for an appeal ought to be slightly higher. We would suggest perhaps a couple of ways in which that bar might be raised. The first would be if you are seeking to overturn the initial decision of a public body, you should at least be able to required to demonstrate (a), why you think the public body is wrong but also secondly you should be required to demonstrate why that information is actually needed in the public interest. You will note, we have not talked about charging, but we would suggest perhaps — and it is slightly surprising to us that it has not come up so far — that you perhaps might consider charging for an appeal and what we mean by that is we recognise why the bar should be low to make the initial FOI Act request but if the public body has rejected it, it doesn’t seem to us unreasonable to say to somebody we are going make the bar a little bit higher, so you have to consider making an appeal. So if you make an appeal, you have to send in at the same time as you make the request, a reasonable fee. And I think our view would be, to keep us honest, perhaps that fee should be refundable, if actually the applicant in the appeal wins that appeal and it is proved that we were wrong in rejecting in the first place. So those for us would be three ways in which we think this disproportionate burden could be reduced.

  • In a sense appeals to the Commissioner or are you talking about when it goes beyond the Commissioner?

  • I think our argument is further back in the process which is that initial request to reconsider.

  • The internal review.

  • The internal review and then when it also goes to the Commissioner you might consider — again there will be a debate about the point at which those two you should charge and what the charge should be check but I think there is an argument we would have that at the moment that bar is too low. As a final point, we genuinely think this has got worse, significantly worse, over the last three to four years and we obviously looked back with some interest to the Justice Select Committee’s post legislative scrutiny when it did it, but we think there has been a significant change and we therefore think in terms of the timing of this Commission it feels to us particularly well timed to address what is for us a specific issue for our members. I hope that is helpful.

  • Thank you very much, Mr Hopson. Do you know how many FOI requests your 238 trusts and other bodies receive each year?

  • Is any effort made to collate this information?

  • No, individual trusts will do it on an individual basis and I think you have some evidence from one of our members at King’s College that effectively shows you how many they have received, I would make the observation that the £300,000 it costs them each year to do this is the equivalent to 14 full time fully qualified nurses. So their view is this is taking a considerable amount of resource off the front line.

  • Measuring the burdens is obviously important, but a key element of measuring the burden is the number of requests. Would it not be a good idea if there was a standard system for both collecting and reporting on FOI requests in the NHS sector?

  • Yes, certainly there would clearly be — it would be lovely to come here with a complete set of quantitative and qualitative data to support my argument. I would just note though, paragraph 56 of the Information Commissioner’s written evidence where he says: “This is a difficult question to resolve by reference to quantitative data alone.“ So in other words, I think his argument is there have been a number of different studies showing quantitatively what the burden is, and even if we were to kind of collect that data, I think his argument would be, it would not be conclusive about whether it might support our argument or the argument of those who -

  • It would not be conclusive for sure but it seems to me getting the quantitative data is essential in any event.

  • And the evidence we have received shows that there is wide variation of practice within the public sector as a whole about — between those who do collect data routinely and then coordinate that data and those who don’t.

  • Just to make one point, it may well be that we have not got it, certainly all the evidence that I have gathered as I have prepared for today’s session suggests to me that individual trusts do have a completely specific record of how many they are dealing with, it is just they haven’t filed those numbers with us.

  • Okay, and it may be they are not on a consistent basis either and that would probably be helpful. You obviously have a written crib there, Mr Hopson, would it be okay to let us have it?

  • It is a very scribbled note but I am very happy to give you a note that sets out what I have just said, of course I would.

  • Thank you. Just running through five of the six categories that you mentioned. The first was commercial companies looking for names for marketing material.

  • Am I not right in thinking for most cases, not necessarily all, individual names will have been redacted in any event because they would have been protected under Data Protection legislation?

  • So a request will come in, it will be: give us the names of effectively below board level, which is quite often where a lot of our key commercial decisions are made: give us the name of all of your heads of anybody who spends money. Clearly every single trust and foundation trust has to have their board names on the website but it doesn’t have their heads of names. So our guys have then got — they will probably ask: give us your top three management tiers, right the way across all names and all contact details, and that clearly takes a long time to collect.

  • Why don’t you have that information anyway? It would be available on an intranet, an internal one, why isn’t it just available?

  • Because our view would be it is appropriate to have board level names in the public domain but it is not appropriate to have significant levels down, particularly because what then happens is they get caught up in mass marketing campaigns of people who then send them acres of material, particularly if you are the head of IT, that, to be frank, is not necessary.

  • If I were to go on the website of a local authority with which I am very familiar, I am pretty certain, this is back then with Darwin, that virtually every level is known on the website anyway, then people know who they are. I simply don’t follow — this must be information that should be in the public domain, isn’t it, about who is working doing what job?

  • So the only information that needs to be put in the public domain is who the board directors are.

  • I understand — well, this is your argument, but I am — forget about the word “appropriate” which means a million things. Just explain to me how it is not in the public interest to deny the public information about people working at a senior level, below board level and at a middle ranking level and at a junior level in an area of the public services?

  • So there is a debate about how much time and effort it takes to, in an organisation of 8,000 people, which is probably your average trust size, of which you have probably got a middle management tier of, let’s say, 400, 500 people which is probably turning over 20, 25 per cent a year, the time that it takes to effectively collect all of that information, with contact details, it is not just names and posts, it is also telephone numbers and emails that we often get asked for and the need to keep that constantly up to date.

  • Will it not be — any self-respecting organisation will be running an internal intranet where this would be there anyway.

  • If you then go to the civil service — I was a civil servant in HMRC as a board level director for seven years, what you will see is most of the civil servants have chosen, for perfectly very good reasons, to not have their names and details put into the public domain for precisely some of these reasons.

  • What I am trying to establish here, because it seems to me really important: this information, which you say is quite costly to produce, will be available — has to be — on an internal intranet, because how on earth, even in HMRC, will somebody know who to talk to if this particular officer has decided to withdraw their name from the intranet?

  • Because there is a different between what is declared internally -

  • The cost of collection.

  • I am talking about the cost of collection, so I am just trying to pin down: is this information easily available to the organisation and the organisation frankly could not run unless the information was available, are we agreed about that?

  • It depends upon the nature of the information that is being asked for.

  • I am talking about names of people.

  • And what I am saying is it depends upon what cut of that information the individual FOI request has asked for. Sometimes what you get is a particular vertical slice through a particular department as opposed to a simple list where you could ask for every single head of. All I am trying to say is it really is not quite as simple as: just grab it off the intranet and then put it on -

  • Okay, at least we accept that this information should be available on an intranet otherwise the organisation has some really serious problems. I would also be grateful if we could have a note about what the argument is for withholding this information about what jobs people are doing. I am afraid I simply do not understand the argument.

  • Surely if the information was available, it would save your members an awful lot of work?

  • So, for example, if you are a doctor who is running the gastroenterology department of a hospital. If that name was to be in the public domain on the website you are likely to invite a very large amount of direct communication, direct to that individual that, to be frank, will take that individual away from their core job.

  • But if you want to know the head of the gastroenterology department it is on the website, but if you want to know the name of the head of procurement because you happen to think your company could sell better, cheaper surgical instruments, you cannot find the name of the head of procurement on the website. How can you possibly justify that distinction?

  • All I am saying is that if you look at the requests that our members are receiving to go right the way across an entire middle management tier, what you will find is the amount of time that it takes them to produce that information — again, let me put it in a note and I will explain the argument as to why -

  • To follow up Lord Carlile’s point, in a big village like Blackburn everybody knew anyway who was in charge of gastroenterology and probably who was in charge of procurement and certainly in the local authority all the way down, including in the commercially sensitive departments like planning, who was the case officer -

  • So the issue is not the people from the village of Blackburn making the FOI request, it is the commercial company in London who basically wants to create a mailing list that they can then sell to a third party all of lists of head of gastroenterology procurement in, you know, right the way across all 151 procurement sites.

  • Assuming you have a properly regulated procurement system, I still don’t understand — let me finish — why that information should be denied so people in Blackburn could have it but not people in London. I don’t follow that. Let me go on to ask you about the complainants. In my experience of having seen a lot of NHS complaints, almost all relevant, say, internal emails will have to have been disclosed both for the internal process, and if it goes before an Employment Tribunal, so what additional information is sought and how much of this is a burden?

  • The point I think we are trying to make here is it seems to us perfectly reasonable for people to make FOI requests to gather information in order to make their complaint so that they can effectively work out the areas in which that complaint should be focused. The argument I think we are making here is that once that has gone through due process and has been adjudicated on, usually either inside the hospital or if necessary through referral to the ombudsman, the argument I think we are making here is that what we are then experiencing is a number of people, even though a determination has been made of that complaint by the appropriate authority, they are coming back again and making a whole series of requests. Again, I think we need to be careful here because I think we all understand there are people for whom some traumatic incidents may have occurred and for whom they will be seeking to understand. I can give you some kind of examples. There is one trust here that is required arrangements for medical report transfers pre 2000, every single operational policy change from 1980 to date, GMC numbers of staff from the 1980s, security arrangements then and now including lock fittings; in other words, this is a person whom has gone through a complaint, had that complaint adjudicated on, but they now want to go back and collect vast amounts of extra information because, to be frank, they were not particularly happy with the result of the way the complaint was adjudicated on. That is the point I am trying to make. It is a relatively narrow one, it is not about all complainants, it is about once the complaint has been completed and adjudicated on.

  • My last question before passing on to other colleagues is about appeals. You talked about having a higher bar — and this is my language, not yours — about introducing a system which, say, for example does apply in Employment Tribunals where there is an initial fee. You are suggesting that should be returned. Could we park that for a moment. Have you got any view about whether the process of appeals to the First Tier Tribunal and then to the Upper Tier Tribunal, could itself be simplified or streamlined?

  • I think a number of people have given you evidence that effectively we seem to have this process of too many layers, so in other words, you make the request, it is denied, there is an internal review, internal to the Information Commissioner, first tier, second tier. Four tiers seems to us to be excessive. There are relatively few cases clearly in our part of the world that have gone right the way up the top but there have been plenty of cases that have obviously gone through each of the lower tiers and our members tell us it is not just the processing of initial request that is forming the burden, it is actually the amount of preparation time that is needed to (a) go through the internal review and (b), if it goes to the FOI Commissioner, the amount of kind of management time that takes. And I think again, people would make the distinction between perfectly legitimate ordinary requests from ordinary members of the public and then people who are, to be frank, the kind of people that I have highlighted as being, you know, perhaps inappropriate cases. The observation our members make is very large numbers of those people do want to go through that route in terms of doing the internal review and then going to the Information Commissioner because they basically feel that there is, you know, no loss, it is a free good for them to do so. I think the point our members are making is: look, of course, perfectly entitled to a genuine request, somebody thinks we have kind of turned it down, but why are people that are trying to end run round procurement processes, why are frivolous requests able to go through, you know, as a free good to both those first kind of next two tiers up?

  • How well prepared and trained to do you think your people are in dealing with the various exemptions that are available under the Act? Is there a tendency to say: these are just too complicated, we might as well try to give the information? Because in many cases, and we have been through quite a number this morning with various witnesses, and you mentioned the one about vexatious requests, where there are differences of views about how difficult it is to use that, but the — you on the commercial side, it seems to be that there is a tendency to imply that all commercial requests are invalid, whereas as we know, commercial requests can play quite an important part in improving competition within any public authority, and fishing trips, which are called fishing trips, all kind of auditors use fishing trips in different ways to try to establish whether there may be things that have gone wrong. It does not seem to me that that makes it invalid.

  • A number of different questions there, let me take the last one first. I have sitting in front of me three examples from a telecoms provider, an ICT provider and, would you believe, a greengrocer, who would you believe were basically all effectively seeking to do end run round procurement processes -

  • What do you mean by “end run round procurement processes”?

  • Trusts basically procure goods through a public procurement process, they are required to do so under the EU and UK procurement regulations. They will go through a process of drawing up a tender document and issuing that tender document and then people can bid against it. So what our members have is, and here is an example of, you know, 35 different bits of information that are telecoms provider is seeking, about 70 different items of information that an ICT person is -

  • That seems to me to be an issue about quantity in the way that it is done, rather than the principle problems.

  • No, our argument would be that people who wish to sell items to our members should go through the proper procurement processes that are set out to do that, and just as you have schemes of publication for corporate information, effectively that information is kind of provided through the procurement process. So the greengrocer wants to know how many boxes and bags of fresh fruit and vegetable and a breakdown of what the items are, how many pieces of fruit this would represent per box, eg, 100 bananas per box? How many tins of fruit and bags of frozen vegetables in the total cost. How many cakes, packs of biscuits, cake bars, sweet puddings and dessert pies are the total cost? All our members are saying is if that person wishes to supply those goods to us, go through the procurement process and get the tender document which will set out exactly what is required but stop coming to us with FOI requests that have huge, large numbers of items in them as a means of seeking that information. That is why I am suggesting to you, if we could have a statutory code which we would perhaps have an opportunity to contribute into, and no doubt my opposite number in the Society of IT Suppliers would also sit around the table, we could have an agreement about what was vexatious and what was not, rather than leaving it as we do at the moment for our guys to make a judgment on the guidance about making that challenge and then quite often have an appeal.

  • This is a procedural question: given that tens of thousands of people responded to our call for evidence and NHS Providers did not, could you please let us have your six initial points with cogent and brief reasons by the end of this week?

  • Yes, I could. Can I just say I am sorry we didn’t give you initial evidence. To be frank, we were not aware of the fact that the Inquiry was going on and we were not written to ask to provide evidence. Had we been so, we would have provided evidence.

  • I am sorry about that.

  • That is fine. I just want to make the point.

  • I have to say, I have found since the Inquiry was established, it was very difficult to get away from any newspaper that was not carrying a story about what a wicked creation it was. But, finally, when your members answer questions, do they publish the questions and answers as a matter of course in all cases or are they selective about how much they publish?

  • Let me just look behind me and check. (Pause) Okay, so the answer we think is that most of the time they would publish that information but then -

  • The answer is the greengrocer gets — everybody agrees with -

  • I don’t know whether this was rejected, all I have is the answer to the question. The only reason is the grounds we would hold would be due to, to be frank, the personal nature of the questions, so if an individual were to ask for details concerning their particular case, for example, then that is clearly not something that we would choose ordinarily to put in the public domain.

  • Well, I thought this was public information rather than private information.

  • Again, clearly if it is a matter of sensitive information that an individual patient has asked for, I think you would expect our members to be really quite careful about what they do and do not put in the public domain.

  • Thank you very much. Very helpful and your opening remarks and things that set out very clearly things you are concerned about and some of your remedies, it is very useful for us to have. Thank you very much.

  • Introducing MS CAROLINE DODGE AND MR GEOFF WILD
  • Thank you very much for coming and thank you for your evidence. As I have been asking other witnesses, would you like to make any opening statements or for us just to go straight into questions?

  • Very briefly, from a local authority perspective, we welcome the work of the Commission. And we are grateful for the opportunity of contributing to the work and our response, as you read it, is an attempt by us to capture some of the practical experiences we have had ever since the introduction of the Freedom of Information legislation to reflect some of our learning and hopefully offer some constructive ideas about how we can maintain the transparency, accountability and efficiency that the legislation brings whilst also tempering it with practical measures to improve its performance, reduce the burdens on the authorities and enhance the experience of those requesting information to access it as effectively as possible.

  • Thank you very much.

  • Thank you both very much. Thank you for your evidence which was very helpful and, as you know, we have already heard today from the Local Government Association. You say that you have only used section 36 to protect information on 42 occasions. Can you give us some idea of how many of the 15,495 cases which you say you have been involved with could potentially have fallen within section 36?

  • Well, we find it is quite a difficult exemption to actually apply and very often, sometimes, there are other exemptions that are perhaps easier to apply to the information. The few occasions that we have used it, obviously, it requires the decision of the appropriate officer, which is Mr Wild, and obviously he takes great consideration when deliberating whether the information should be released or not. Therefore, he has very often decided that it is not appropriate to exempt that information and we have relied on perhaps other exemptions or have looked more seriously at what information can be released and just applied a different exemption to more limited information. But it is a very difficult exemption to apply and perhaps if other members of the authority could apply that exemption which would then allow Geoff, in his capacity as the Director of Law and Governance, to review that position, maybe it would have been used more often.

  • I realise you say it is very difficult. What I am after, if you can help us on that, is how many of the large number of the requests you say you have received, how many could have fallen, in your judgment, roughly speaking, within section 36, as opposed to the 42 occasions when you did use section 36. I am trying to get a sense of the proportion.

  • 42 is a correct impression of the proportion of the total number of requests where section 36 could have applied. I think in all the others, section 36 has never been raised as a potential exemption. It is very, very seldom used or even requested.

  • If I take that answer at face value, you say you used section 36 on every occasion you could have used it?

  • On most occasions that is correct because, by the time the section 36 exemption has been proffered and considered, other exemptions would have been put forward first, or alternatively ways in which the information could be disclosed have been considered first, so it is very much an exemption of last resort.

  • And you say that it should be easier to use section 36 although you are content that it is a qualified exemption? Are you seeking legislative change or do you think guidance, different and clearer guidance could suffice to meet your concerns?

  • From my perspective, and I will leave Mrs Dodge to express her view, is that guidance on a number of exemptions and where they can and cannot be used would be helpful and is that probably the extent of what is required at this stage.

  • And I personally think that it would be preferable if the appropriate designated officer that could invoke that decision perhaps could be widened to more than, in our authority, just Geoff. I think because also as Geoff is the Director of Law and Governance, when we have had challenges, when we have used section 36, the only people that have got sufficient knowledge of the Act really to do an independent review are, like myself, subordinate to Geoff which automatically puts you in a slightly difficult position. So maybe if you could broaden who are the designated officers, that would allow Geoff, in his position and experience, to have the overall say-so, should it come up with review. It is only a suggestion, that is all I am saying.

  • You want to keep the qualified person provision but change the -

  • But maybe extend the number people that are qualified to invoke it or anybody could invoke it and then the qualified person would be there to review it.

  • Yes. So you are not suggesting, as I thought you might have been, reading your evidence, that section 35 should be widened to use, to enable other public bodies such as yours to use it?

  • No, we didn’t consider section 35 at all because we just deemed it was not appropriate to local government, so ...

  • Right. Now you also argue for an absolute exemption on issues to do with the security of the council’s network’s systems, et cetera, is how you put it. Have you had many or any requests on issues of that kind, and if so how have they been treated, have they been granted?

  • Well, we certainly have — one of the biggest concerns from an IT point of view, we have had dozens of requests in the last year for information about what security we have on our, you know, like our infrastructure, our networks, like what providers do we use, what virus protection do we have, that kind of thing and individual requests on their own maybe seem quite innocuous and you give the information out. Then over a period of six months you can actually see a trend and if all the information that was asked was then, say one person had overarching sight of that and put it all together.

  • They would if you -

  • Obviously if they found out what measures we were putting in place to stop being spammed and hacked and have Trojans and all of that sort of thing, telling people what we do to stop that is just going to give them a foot in to our networks and compromise our information, isn’t it? So I think -

  • Have you had that series of requests which amounted to -

  • Yes, we have, and our head of ICT actually raised concerns which I did put in the report about the sort of aggregation of piecemeal bits of information to individuals which collectively could be quite compromising.

  • What happened: did you refuse the request or did you give all the information?

  • No, we are starting to refuse them from now, or we are starting to -

  • Refusing using which exemption?

  • We would be using section 31, that is the only vaguely appropriate exemption and as I said this is one of the reasons why we perhaps want a separate exemption to be brought in or maybe perhaps an extension to the existing exemption. I am not saying it needs to be absolute, it could be qualified but I think there should be some sort of provision where local authorities can protect their assets, both their networks and their properties and things like that.

  • That would require legislation, that could not be done by guidance?

  • No, you couldn’t really, you would have to broaden the scope of section 31.

  • Have any of the attempts you have made to protect this information so far gone to the Commissioner, or not yet?

  • Not recently, no, we have not had anything recently go to the Information Commissioner at all but we have had various sort of hacks on our network and I think in the last couple of weeks, we have had over 3,000 attempts of people trying to hack in to KCC security network. This is an ongoing problem -

  • You cannot directly get to requests for information?

  • We absolutely cannot and we appreciate that but all we are saying is you have to give some consideration, you cannot make absolutely all information available to everybody all the time. There are going to be repercussions if you do.

  • Thank you for that. You also suggest that the vexatious provisions should be widened. And so I want to ask you first of all whether you think that should be done statutorily or by guidance? You do identify a number of ways in which it could be done but not the question of statutory or by guidance. And I would like to know how often you have used the vexatious provisions to refuse requests?

  • We don’t use it very often at all because, to be perfectly honest, when we receive requests, so we have had things like: how many people are employed at the council called Dave?, and other such interesting things, it is actually easier just to deal with the request than it is to refuse it. Because when you refuse it, people assume that you are calling them vexatious, not the request, that is a perception, I know, but they get very aggrieved about it, quite obviously. They then complain and the time it takes to deal with the complaint actually is more time-consuming and costly in resources than to actually just attempt to answer the request in the first place. So one of the reasons why we don’t use it that often is just because sometimes it is simpler, cheaper and less cost effective -

  • Have you actually had a request for the number of people in the authority called Dave?

  • We certainly have, but they didn’t ask how many people were in the authority or how many were men and women, so when we gave them the answer, which I think was 129 off the top of my head, it didn’t mean much.

  • I could think of other examples.

  • How many red pens has Kent County Council used? We have over 10,000 employees, it is quite a lot but we don’t have to break down obviously our stationery to that level of detail so it is an impossible question to answer.

  • The first one about the number of people called Dave, presumably that was not burdensome, whereas the one about the red pens was burdensome.

  • The one with Dave was very easy to answer because it was just a case of going into the HR system and pulling a list of everyone called Dave or David.

  • You gave them David as well as Dave?

  • You get a lot from Kent County Council, value for money.

  • This is one of the points we were trying to draw out in our response at 618, that these trivial time-wasting complaints as compared with some of the real meritorious and valid requests that we receive, whether there is a way to distinguish and I appreciate it is very hard to legislate for that sort of distinction, but it would be extremely useful if we could discard some of these more trivial and insignificant requests from those which really deserve time and attention.

  • But don’t most of the suggestions you make actually run up against other aspects of the legislation or would be easily circumvented by people.

  • I think that is the point I made about fees. Yes, it would be nice to charge people that are going to make commercial gain from the information that we have collated for them, but I appreciate it is unenforceable because people would just then make requests using their personal email. I don’t know what the solution is, but I am just giving you feedback of how we find it as a local authority.

  • That brings me to the last question I wanted to ask you, which was about these requests for information on a commercial motive, rather than on what you would possibly regard as a public interest motive. My question is this: if requests of that kind enable someone to put in a bid for one of your services, on a more competitive or a more effective basis that is in a sense in the public interest, isn’t it?

  • Absolutely. And our contractual information, the major contracts that we have in place are routinely published, there is an element that people don’t want to bother to look for that information, rightly or wrongly, and maybe we should do something more about that.

  • Can’t you just tell them that it is already available?

  • Yes, but either way, even if it is already available, someone has put the request in and myself and a member of my team still have to go through the motions of answering it, acknowledging it, pointing them in the direction where they can find that information. That all takes time and collectively that amount of time could arguably be used on frontline services like getting rid of one of my team and employing a social worker. That is really what it is all about. Local authorities, and KCC is no exception, we are under a lot of budgetary constraints, I think we have to save 80 million next year and generate another 19 million in revenue and obviously any money that can be saved by any means whatsoever to go to frontline services is surely a good thing and that is in the public interest too, along with information.

  • Could I ask, do you routinely publish the answers to all of the requests that you answer on your internet site?

  • We do have a disclosure log on our website that gives details of the number of requests, not who it was from, but a general description of the request, whether we withheld it or not and how many times we took to deal. Unfortunately we log our requests on a Microsoft Access database which is quite low tech and we have not got the provisions to load — redact the sort of 15,000 answers that we have given and upload them to the website because we would need another couple more employees to do that and we have not got the budget to employ them, so until we get a more, sort of better technology, if you like, but saying that, we do say on our website with our disclosure log, that if anybody wants a copy of the request and our response to it, we will gladly give it out. But we do it on an as we need to basis rather than use resources we have not got making information publicly available just in case someone wants to look at it.

  • Any other questions? Thank you very much. Thank you for your evidence. That is very helpful.

  • Introducing MR BOB SATCHWELL AND MR PETER CLIFTON
  • Good afternoon. Thank you for coming. Just to make clear that you are not both from the same organisation, but that you are from separate organisations and because we thought that many of the points that we might want to raise with you would be common, that it would be helpful in a sense to seat you side by side so that we can hear your answers sequentially. Do either of you want to make, or both of you, an opening statement?

  • If I can just be very brief and I am very happy to be sitting alongside my colleague who has worked very closely with all other media organisations, some of whom you have heard from in great detail. The Society of Editors has about 400 members across the whole of the media, so we have a fair amount of evidence, much of it anecdotal, of course, from across the media. Our basic concern has been that any review of this kind should be more about trying to make sure that the way forward for FOI, which we believe quite clearly the evidence shows has worked very well on behalf of the public and I believe, actually, on behalf of public authorities, certainly when I sat on an Information Users Group within the Ministry of Justice, we had very similar questions to those being raised now and points which have been raised now about the burden and so on, and that was dealt with. What we found at that time was that, when in discussion, many people from the health service, local government, the police, actually realised that it could be of an advantage to them to release more information and the problem was that there was the culture in the past had been that very little information was released but if you released a lot more information, you got a lot fewer questions actually and I think that is the position we are at now. I think there are certain areas which, where FOI needs to be extended, certainly into the area where there are organisations which are acting on behalf of government and other public authorities and I came in earlier on when you were having evidence from a university — a university spends an awful lot of public money and it is dear to everyone’s hearts and the idea that they should be taken out of it just seems to me to be quite wrong. We already accept that there are plenty of areas of — and I understand why there are areas where FOI should not apply, for instance to do with individual privacy and commercial confidentiality and so on. Going on to the burden, I do understand some of the points which are made there but we get, from our members, the view that, quite often, some are authorities, whether it is local authorities or the police have in fact increased their own burden by in fact saying — instead of just answering a journalist’s query through the press office, they have said actually “put in a Freedom of Information request” when it could actually be easily dealt with just answering the question. There was one police authority, police force actually, which said: we are in competition with the media, you know, we want to get our information onto our website before the papers and the telly and so on. I said: of course you do, but I am not sure the public will see it as being totally independent information. I think also, if you look at the cost of public relations across the public sector, it was huge compared to the cost that anyone can identify for answering Freedom of Information requests. At one point I seem to remember that the Press Gazette, the trade paper, did actually do a survey about the number of people in Government and public sector press offices and I think that almost every journalist had a personal press officer. So, you know, there is a huge cost there already. But I think really what it comes down to, our view -

  • Aren’t most of those answering questions from journalists anyway? Most of the press officers I worked with spent most of their time —

  • Or perhaps creating pieces of information -

  • Every now and then they might do that, but the bulk of their time is spent answering queries.

  • The point is there a huge investment in public relations, to the cost of FOI compared to that is very small.

  • I think it is a cost in answering journalists questions.

  • If I could conclude by saying that really our basic point is to try to change the outlook, I think that was part of its intent originally and where — in some organisations, the switch is in the wrong place, still, instead of — it is: tell them as little as possible until you are actually forced to tell them something, when in fact it would be better to set the default switch to tell people everything unless there is a good reason for not doing it, and I understand, and I think we all accept, that there are very good reasons to understand it. The final point I will make, you will hear later on from Maurice Frankel from the Campaign for Freedom of Information, that it seems strange that after 10 years of it being in position and 15 years after it being passed through Parliament, we still have to have a Campaign for Freedom of Information. That is an indictment of itself.

  • We will let him answer that question himself!

  • Good afternoon, yes, I am Peter Clifton, the Editor in Chief of the Press Association, or PA, as it is widely known. We are the national news agency of the UK and Ireland, we provide hundreds of news reports, pictures, videos and graphics to customers in this country and abroad, 24 hours a day, 365 days a year. The customer base is very broad, covering all the main UK broadcasters, national and regional newspapers and an enormous range of websites. PA is a passionate supporter of the Freedom of Information Act and has regularly used in a responsible way to provide insightful journalism to our customers, journalism that has on occasion been raised in Parliament, prompted reviews of CPS guidelines and highlighted gaps in the understanding of important data. I am delighted to have the opportunity to be here with Bob today but I am also keen to stress that we are keen to represent a united view across the UK media. PA shares the widely aired concerns about the make-up the Commission and regrets the lack of anyone representing the media industry and investigative journalism, bringing a more positive view of some of the many benefits the FOI Act has delivered to increase transparency around government and public bodies. We also believe the questions the Commission is considering predominantly around the burden and the controls of the FOI Act suggest a remit based on reining in the Act rather than looking at how it could be further strengthened to support the Government’s commitment to greater transparency. On costs, we hear concerns about the money spent on meeting FOI requests, yet close examination of the numbers will suggest they are microscopic amounts of money compared to overall budgets; fractions of 1 per cent for Government and councils. This does not seem like a high price to pay. This is, after all, public money that is being spent to give the public greater transparency around the institutions they are paying for. Of course, the amounts spent on FOI requests are significantly less than Government and councils spend on their own PR and official communication channels. On the other hand, there has been a suggestion that the public, charities and media should be charged for making FOI requests: hardly a great calling card for openness and at a stroke, numerous important investigations would be strangled at birth. Many of the PA’s most telling FOI reports involve multiple requests: for example, asking the UK’s 45 police forces how many registered sex offenders they have lost trace of. Th4e answer was a startling 396, some for more than a decade, but an answer that may never have been revealed had it cost more than £1,000 to make such a multiple request. Our overarching view, and one shared by the Information Commissioner, is that the FOI process works. Sections 35 and 36 of the Act already provide adequate safeguards, vexatious enquiries can be blocked and the safe space beloved of Cabinet ministers and their advisers is most often upheld by the Information Commissioner. There seems a clear lack of evidence that there may have been any chilling effect on civil servants and their dealings with ministers, the Justice Select Committee and the former head of the civil service have rejected this notion. It is our view that the FOI Act has provided invaluable support for an open democracy over the past decade and far from clipping its wings, the remit of the Act should be extended to include private contractors like G4S, Serco and Capita who receive billions of pound of public money every year and should surely be subject to greater scrutiny. The final point is about the public. Millions of the them read the FOI based reports written by the PA and many other media organisations. They provide billions of pounds every year to fund our Government and councils. If you took the time to gather their views on this vital democratic issue, it is hard to imagine any member of the public supporting further controls on access to information that should very often already be in the public domain. If we are genuinely striving to have the most transparent Government in the world, our institutions should be making more data available where openness is the default, not secrecy, and underpinned by a strong responsibly run FOI Act of which we can all be proud. Thank you.

  • Thank you, Chairman. Can I start, Mr Satchwell, about of page 2 of the Society of Editors’ evidence because there is something I don’t understand there? You say in the middle of the page: “A pursuit of a safe space for decision making is misguided and unnecessary. It is misguided because if applied through the use of a blanket exemption, it would pull down the shutters on the transparency that the Government and Parliament has pledged to encourage. It is unnecessary because sufficient exemptions and protections already exist to safeguard sensitive discussions in the formulation of policy.“ There seems to me to be an internal contribution in those two paragraphs. So can I start by asking you to be clear as to whether you believe that there should be some space, safe space, for decision making?

  • I think the answer to that is yes and it is partly to do with timing. If you look at any major decision, policy decision, which has been made by Government, as time goes by, it becomes less important.

  • Hence the switch from the 30 year rule to the 20 year rule, for example. If that is right, why do you describe it as misguided and unnecessary?

  • I think the idea, what we were looking at, probably saying there, is that the idea of increasing the ability of Government to withhold that kind of information — I also have a view that, when — we have heard from the previous head of the civil service who said there is no sort of chilling effect on civil servants which was one of the arguments that was put up.

  • I don’t think that was quite what he said. First of all can I thank you for an important clarification in answer to the first part of my question. I was going to refer to Lord O’Donnell. So can we just remind you that we heard from the Information Commissioner last week who said something similar to what you have just said, but we also heard from Lord O’Donnell that there is uncertainty that the Act brings. Do you accept that the Act does leave some uncertainty as to what will be released or withheld and, if so, would you favour the introduction of greater clarity at least by guidelines or practice notes?

  • Yes, I mean I think, to a certain extent it is a matter of common sense a lot of the time. And I think, again, it comes back to this point that people at the highest levels of Government, just as the point I was making about local government or the health service or whatever, is that in fact it is of value for people at the highest level of Government to release as much detail as possible about how decisions are made and why they have been made because that, actually, increases public confidence and so on. I think too often there is a concern about, whether it is political embarrassment or whatever and, you know, okay we live in the real world, but I think the more that can be released at a early as possible time, the better. I think that the — the other point is that, I mean, again, I think some of the view I seem to be getting from the idea I was taking from the civil service argument is that, well, we — it is difficult for us to be put on the line, if our advice to ministers is released. Well, I would have thought, if well paid and highly qualified civil servants are giving the best advice, it is quite a good discipline to know that eventually your advice might well be released.

  • Isn’t that all about the word “eventually”? When is “eventually” —

  • I think in a sense, it comes down to some of the tests you might apply to commercial sensitivity. If negotiations are going on, I think it would be foolish to suggest that, while Government is coming to a decision about something and while the Cabinet is still debating something and no decision has been made, that has a sort of, the equivalent of sort of commercial sensitivity about it, doesn’t it?

  • Can I press you on this point, because it is a subtle issue, the relationship between ministers and their officials but both sides have to put up with the fact that the other side has not chosen them, so it is not — you know, it is not like in a command and control organisation where probably Mr Clifton has some control over who works inside his organisation. So you have ministers who are appointed by the Prime Minister, you come into a Department, it is a fundamental part of our Constitution, I accept you accept the fact that there is going to be a body of permanent civil servants you will not necessarily have had any control over and whose political opinions about which you ought no know nothing, but whose duty is to be loyal to the Government of the day. But this is based on this issue of trust and confidence which then runs in, subtly, to this issue of confidentiality for a period. Whilst these people are speaking truth to power, so, Mr Satchwell, would you not accept that this very important constitutional arrangement we have, permanent civil service, politically appointed ministers, does necessitate some protection check for that bond of trust between official and minister?

  • Of course I can accept that that is important and that is in the public interest itself. But the point I am making I think is that there is a greater public interest in informing the public about how a decision has been made at the earliest opportunity and I think that that actually would enhance that relationship of trust and the way that Government works, if you do it on that basis.

  • But it begs the question of what is the earliest opportunity -

  • Yes, of course it does. What I said in the conclusion to my opening remarks is that it is a matter of trying to get the default switch into a different place and it is saying, instead of saying, releasing it only when you have to, and when it is dragged out of a public authority or government, well, you know, the assumption should be, release it and have very — unless there is a very good reason for not doing so, and to think what those reasons are and I am sure that those of you who have sat in those positions know precisely what they are and it should not obviously be just a matter of convenience or embarrassment.

  • A practical question that arises I think from what Mr Straw has just said. Between your organisations you represent the whole of the British press, effectively, more or less and we know that the PA’s stories come from every corner of the country and find their way into newspapers that your editors edit. To what extent has there actually been discussion about the evolution of FOI between your representative organisations and ministers or the Cabinet Secretary over the years since it came into effect? I must say it seems to me that we would have less megaphoning about the work of this Commission and FOI in general if we could be confident that there were creative discussions taking place on a regular basis between you and Government.

  • Well, over the years, over the whole period, and in fact before the Act was introduced, and working very closely with the Campaign for Freedom of Information and, as I say, after it was passed, I actually sat on a Government committee which did a very similar review.

  • Has that continued?

  • It has not continued, no.

  • Is it your view that there should be a review committee or something of that kind which would ensure there was an ongoing conversation between Government and interested parties, including Mr Frankel’s organisation — if I can be forgiven for putting it so personally — so that less megaphoning takes place and more real discussion.

  • I think as I suggested earlier, that everyone benefited, everyone benefited from that Information Users Group at that time, including the Office of the Information Commissioner which what was exposed was the fact that it was very badly underfunded at that point.

  • I want to turn now to section 35 and 36 if I may. Mr Clifton, in the PA’s evidence you refer to a number of FOI success stories and indeed you made it quite modest about the number of successful stories there have been, I think we would accept that. But is it fair to say that very few of those success stories relate to the issue of the operations of section 35 and 36 and can you tell us in how many cases the request for essentially factual or statistical information was provided without quibble and that really section 35 and 36 don’t act in any way to the detriment of the media?

  • The one experience we have had of section 36 which jumps to mind was when we recently asked a question of Parliament around any reports that had been written around the provision of alcohol in the Commons and any reports about the health implications of that and the Speaker blocked that quoting section 36 and we have no ability to appeal because he has an absolute right to do that. So I would say that is the most — I have only been back at PA for nine months to a year, that is the only example that I am immediately aware of. I think the vast majority of our examples are where we will go to the police, to a health service, or the ones that you see in prison services, hospital trusts and there it is more about the reliability of the responses. We very rarely get everybody respond. We will sometimes only get half of them respond, but on occasions if we get enough of a response that will be how we set about crafting our story.

  • Who do you do when people don’t respond?

  • Well, we will get back to them and tell them that we are minded to go to the first stage of an appeal, very often people will then respond and reluctantly give us the information. If we are then at the point where we feel we have sufficient evidence, we will go at that point rather than spend more time going through an individual process with maybe half a dozen of the authorities which we have approached.

  • How many do you end up with?

  • The example of the number of prisoners who have been released in error, that was 39 forces out of 45.

  • That is not a bad strike rate, to be honest, that one.

  • Are there any changes you would suggest to sections 35 or 36 or repeals of sections 35 or 36?

  • We would like to know about the drinking of Her Majesty’s Government.

  • We will have a word with you afterwards about that!

  • I will see you in the bar!

  • I can’t imagine how Mr Speaker would know about the drinking, for example, by Members of the House of Lords in this building, but there we are. Let’s move on to something more serious.

  • What was his reply, Mr Speaker?

  • When we put in a — essentially, we put in the request to ask if there had been any reports gathered around the consumption and the provision of alcohol in the Palace of Westminster and Mr Bercow rejected it on the basis of section 36 that it would inhibit full and frank discussion, so we have no response. We were told there had been nine people that had referred themselves for some kind of medical advice but that was -

  • Not to him, no. That was as much information as we were given.

  • Leaving that one aside, because the mind boggles after 30-odd years in this place as to what information you would or would not get, can I turn to an entirely different issue which is the imposition of fees. I don’t know if you were here earlier but you have heard various public authorities and we have had evidence from various public authorities protesting, as it were, that the imposition of the FOI is unreasonable for them and that the media and commercial organisations could perfectly well pay small fees to obtain information. Why is this view not reasonable?

  • Well, I think the idea of putting the media into that same category of people just trying to trawl for information just to make contact to, as it was, put — to try and offer services or try and get contracts is slightly different, really. The media is in a different position. We are simply a conduit to the public. And I think also one of the examples that Peter has mentioned about where you are going to 45 different police forces or so many different health authorities, it becomes very, very expensive, even for a major media organisation, perhaps a national paper, it becomes very, very expensive and there would be — there would be cost constraints on that. It is not cheap. What the media I think tends to do though is, again, often with the help of the Campaign for Freedom of Information, is to try and find a way of asking questions in a way which make it easier in a way for any organisation to answer so that they are not sort of drifting off and having to go off into what are loosely described as fishing expeditions, but to try and be more specific and to be as helpful as possible to say what you want the information for.

  • What steps have you taken to advise your memberships or journalists that they should not go off on fishing expeditions? Because we have heard evidence and seen evidence that members of the media, particularly the regional media, have an inkling to ask blanket questions of every single local authority in their region.

  • I will just point out that although PA provides all the people I have described earlier, I would not want any of them to think I have come here saying “I am representing you in some formal way”, they are our customers and we have great relationships with them. I would say from my perspective, if you look at the examples quoted here, the PA strives to follow up on things in the news. It might be a court case that raises an issue, it might be a news story that raises an issue, you will see that examples that we have quoted and there may be many others are building on something that we think is legitimately in the public eye and we think there is a need to try a find out more information to back up something that has come up as part of the news agenda. And my journalists would be expected to review Freedom of Information requests on that basis and the idea of fishing trips on a wet Tuesday afternoon because they cannot think of anything else to do is absolutely not what I would expect. I expect there to be very good thoughts and that is what people would expect from PA, and the reputation that we have is we are not going to send out blanket ones about people’s first names, we want to follow up and get under the skin of stories that are already in the public eye. And I think the examples quoted here, and many others I could weigh you down with would point to that. But I would say there is a awful lot of other fantastic work right at the top of tree from national newspapers — the Mail did one on public sector pay before Christmas which actually involved well over 1,000 requests, right down to the Kent Messenger Group in 2009 finding out how many days sick people at Kent County Council had had: 90,000 days at a cost of £4 million to the local council taxpayer. All of them feel very legitimate to me. I think it is easy to point to the odd example of a crazy one, crazy stuff happens but the vast majority of the examples I am aware of and read about from the media are responsible.

  • Sorry to press the point further, and I mean what I am about to say: given that you represent a noble profession underpinned by some ethical principles, does either the Press Association or the Society of Editors issue any guidance of any kind to its membership and customers as to how FOI should be approached?

  • We routinely — I routinely refer them to the Campaign for Freedom of Information, actually, to explain how the Act works, and that has been a case from the smallest of local papers to something as big as the BBC and I have said: go and get advice because, you know, there are people with expertise on the way that the law works and simply you should have that information from the horse’s mouth, as it were.

  • Mr Clifton, given the criticism there has been of some journalistic practices, for example the interception of messages unlawfully, does the PA issue any guidance on the appropriate use of FOI to its members, and if not, why not?

  • We don’t, because that is not our role. We are a news agency like Reuters or Associated Press, we have a fantastic range of customers who we are delighted to have, who pay us for a service we provide on a daily basis. That is the nature of our relationship with our customers. We know that they know the high standards that PA will uphold and the quality of the content we deliver to them will be reflected in their publications on a daily basis, but we certainly would not give advice because that is not the nature of the — the Association is probably a bit of a misnomer, we are a news agency that provides quality content to many, many customers.

  • On another matter, is it the view of your bodies that contractors and charities carrying out work for the public sector should be subject to the same obligations as public authorities, and if so, do you set any sort of lower limit so that small companies and small charities are not unduly burdened?

  • I think the simple answer to that is yes.

  • Well, I can understand the point. I mean I would leave that to people who have greater knowledge to set where that might be and that is as far as I would go, but in principle, you know, we are talking about the major organisations which are now doing public authority work and I could understand if it is a tiny little local charity or something, there might be difficulties.

  • But that is something which I am sure could be worked out at a sensible level.

  • That, that is very helpful. Mr Clifton, you say in your evidence that FOI is now being used as a tool to protect those in authority from mere embarrassment. By that do you mean that ministers or the Government is simply seeking to withhold that it considered a policy which might be unpopular and even that sort of level of consideration should be disclosed, or do you accept that there are circumstances in which the withholding of information that might prove embarrassing is appropriate?

  • So my view on that is that I think we are reflecting the fact that there is a tendency for a default more often where withholding information is the preferred route and that is what concerns us. I think we all acknowledge that there is a requirement for a safe space and the period of time that might elapse before that might no longer be relevant but I think we are concerned that in various examples that we write about and we see quoted elsewhere, that there is a default which is to try to block that request for open access to information rather than make that information available.

  • In defence of my neighbour Mr Straw, who introduced the Freedom of Information Act, would it not be fair to say when it was introduced far from seeking a default, the then Government was seeking to provide a greater openness? If that is the case, and it almost certainly is, what has gone wrong?

  • I think what has gone wrong is that we see too often that — well, I think at the very heart of what has gone wrong is that we still have a society where there is not a default of making more information readily available, whether it is on websites of trusts and of health authorities and so on, I think that is at the heart of the issue, that there is an awful lot of information that we should not even be arguing about, whether it is in the public domain or not but it simply is not and there will be reasons, some of which we heard in one of the sessions a bit earlier, about why it is too complicated and expensive to do that. I think if it was the default to do that more readily and to acknowledge that UK taxpayers are fully signed up shareholders of UK plc, more of that information should be made available, and if it was, we would not have to go to the often torturous process of trying to get to that information which really is not contentious and should just be readily available.

  • Does to follow from that that the publication of (a) risk assessments and (b) all responses for requests for FOI would be helpful to the media and you would consider sound principle?

  • It is an easy question, isn’t it?

  • There are times of course when the release of information as a result of an FOI request, the open release, immediate release, is sometimes used as a way of taking away a media organisation’s exclusive. But, I mean, call me cynical but that seems to happen sometimes.

  • Can I follow up the important point Lord Carlile raised with you, Mr Satchwell: he said that you founded the user group that was set up initially when the FOI Act had been passed and was coming into force, and regretted the fact that it no longer was there. Drawing that into Mr Clifton’s remarks a moment ago about the need for greater openness, if there were a new user group combining people like yourselves with practitioners, as it were, on the other side, would one of the issues you would be able to pin down in that the notion that, say, health authorities should routinely provide information about staff at every level or, for example Mr Clifton, that police authorities, police forces should routinely provide information about sex offenders from whom contact had been lost sight of, so you ended up with lists of information that should be made available, full stop, and then you would bypass the need for what you describe as torturous and time-consuming applications?

  • If I could just say this from the outset, what I have always felt about the Act is that it was not powerful enough about its purpose and what Parliament intended; you know, a real hard purpose clause. In fact, if you read through it, most of the paperwork is actually how to avoid answering an FOI request and how to get an exemption and I understand that that is the problem of Parliamentary draughtsmanship and so on, but that can be a problem in itself. I think the value of an ongoing dialogue is that you can have conversations about all of these sorts of issues and you come to an understanding of why a health authority may be reluctant to release certain information and they may get to understand why journalists might ask difficult questions. You know, as I say, certainly my experience of the user group was that the health authorities, representatives of the health authorities, local government and the police were actually persuaded that they could benefit from the Act in terms of public confidence.

  • Of course you do have — I mean, you have just mentioned earlier a potential conflict between the fact that journalists are looking for exclusives which actually goes against the notion of trying get everything out ahead of time but — on your point about saying the default position, when you have been doing these various exercises, which as you said earlier by and large did not involve sections 35 and 36, have you run up against problems of getting the information that you wanted? I mean, you only said the default position is not to release the information. Is that really what is happening?

  • We would very rarely, and certainly in the time I have been back at PA, I can’t recall an instance where we have done an inquiry of all the police forces where we have had them all respond, for example, so there will be some who do not meet the time limit -

  • You have not had a blanket refusal?

  • Not from all of them, no, we would normally get a decent body of responses, but there are some who are more inclined not to respond than others. One other point about the level of information that is made available, I think if more data is made available, there is still a fantastic opportunity for journalists to find stories within that data, so the whole approach to data journalism which we now embrace is about really examining figures that are released around hospital tables and exam tables and extracting interesting stories from the data. It really is lazy journalism if people think that, well, just because the data is all out there, there are no exclusives any more. There can be much better quality journalism by proper mining of data that is made available —

  • On a more consistent basis.

  • I think it is also true that there has been some change in attitude and I can think of one in terms of the police when, what, 25, 30 years ago I tried to get to the idea of what is now called crime mapping, to try and tell the public about the levels of crime in their area. That was seen — there were technical difficulties at that time both within IT departments of the police and indeed in the way that newspapers were produced but there was a general sort of hold-back on it. There is still to some extent a hold-back on it.

  • I thought there were apps that showed you the crime in your area now?

  • Yes, I mean, there are. But it is that kind of thing where attitudes have been changed by the Act, so that is another reason why it has been effective.

  • Final issue from me: in paragraph 33 of your evidence, Mr Clifton, you refer to our next witness, Mr Grieve, having exercised what you call “the divine right of kings” to veto the Prince of Wales Black Spider letters. Doesn’t that comment display a complete misunderstanding of the separation of powers and isn’t it a fact that, actually, the decision of the Supreme Court in that case, insofar as one can distill a decision from it, simply found that Mr Grieve was carrying out a legitimate task but got it wrong in law and should we not leave the situation that way rather than extravagantly trying to change the way in which the veto operates?

  • I think we were merely pointing out a concern around the executive having the right of veto over a decision of the judiciary.

  • So exercise the veto earlier then, as suggested by the Commissioner?

  • If the veto had been exercised at the right point and it had been gone through the process in that order, that is what the Act is there to do. I think we are only pointing out there is obviously, in very flowery language, there is a danger that if this became the norm, you would be challenging and vetoing decisions made by the judiciary.

  • Charles I and Mr Grieve both lost their heads, didn’t they?

  • It is clear that FOI has enabled the press to reveal a great deal of information that it was in the public interest to know and which would not have otherwise have been revealed and we have heard a great deal during these sessions and in other evidence about the data that has enabled important stories to be revealed in the health service, police, a range of public authorities. I would like to go back to the specific issue, Mr Satchwell, that we were discussing at the beginning of your session about the safe space. And just so that I have understood what it was you were saying, I think you said the safe space is necessary, that you felt it was fine as it is and that it should not be extended. Have I captured what you said?

  • It certainly should not be extended, is what I would say to that. What I was saying is I would recognise that there are occasions, there are times, when information should be on the similar sort of basis when you think it through, there should be a positive decision about it in the sense of saying, this is why, this is the important reason why it should not be released and I think that too often, decisions about releasing any kind of information are negative. Well, the simple answer is: no, let’s not release it, whereas in fact I think — what I am trying to encourage is a positive decision to say the reason why we are not releasing this, there is a very good reason for not releasing it, but the default should be to release it.

  • Thank you. The Information Commissioner told us last week that his understanding of sections 35 and 36 had evolved over time, he felt various authorities’ understanding had evolved over time although we have heard evidence that that understanding differs in different places and that he issued updated guidance and so forth. Do you think greater clarity could be achieved without changing the intention and, if so, how?

  • Well, I think you can always get greater clarity by reviewing and revising and trying to — I think what it needs to go back to is to keep going back to what the original intention of Parliament was and, as I say, I have always felt that the original intention of Parliament, and this happens too often in legislation I think, is forgotten, partly because politicians move on by the nature of things and there are — and I think it is well worth revisiting and sitting round a table and saying: well, you know, where are these boundaries?

  • Thank you, that is very helpful. May I move on to the speed of the whole process and the layers that we have heard about characterised by an earlier witness as four layers of review. Do you think any of the layers could come out, would you welcome a more streamlined appeal system?

  • I have not been directly involved in making FOI requests for some time, in fact, even since the Act came in, directly involved, but clearly it seems to me that, if you have that many layers, you must — there must be room to streamline and I think where there is a problem, one of the problems where we do have an example of a problem that arose with a police force actually, was that they rejected a request and the Information Commissioner supported the paper that was making the request and so the police authority changed its reasoning for not releasing the information from, I think it went from vexatious to an investigation still going on. I think it was that way round, it could have been the other way round, but this is crazy. You know, either there is a very good reason for not releasing that information or there is not and that is where there could be greater clarity.

  • Thank you. I think we have heard a very great deal from yourselves and from other witnesses about the importance of authorities publishing information proactively and Mr Clifton, you made a very good case for that. Two questions. The first I think I know the answer to, but the second I would be very interested in your thoughts and perhaps both your thoughts. Are public bodies complying with their existing obligations for proactive publication and if not, do you think that somebody needs to be given the job of enforcing that? I will ask Mr Clifton first.

  • I think the answer to the first one is definitely no, it is a very patchwork quilt view of the country currently in terms of the consistency that we get in the data that is released as a matter of routine. I think it would be an excellent thing if there was a more commonly held understanding, an obligation on bodies to behave as they are, a publicly owned institutions that make their information more readily available, whether that is by having somebody whose job it is to crack the whip or, as we have already discussed earlier, some clearer guidelines about the level of data to which all bodies would be expected to conform, but I think at a stroke, a lot of the issues we talk about, the some time that is spent answering these responses would be addressed if there was just a much more open approach to data that is often not particularly controversial, it just adds to people’s understanding about the organisations that help to run their lives and I think we should have a more consistent approach. Whether that is a person or clearer guidelines from, you know, overarching counsel bodies and so on about what is expected of their members, I am not entirely sure but as a media organisation, we would clearly welcome that because I think what we can do then with that data is of benefit to everybody.

  • I think it comes down to two things. First of all, two words: public and service; that is what public bodies do, they serve the public. So it just seems absolutely strange to me that there should be any reluctance to release information which is the public’s information. And the second thing is it comes down to leadership and I think it is something which should come down from the top of any organisation, and unless people at the top of those organisations are driving it and are making it a priority with the understanding, the simple understanding that the more — the more you can tell the public and explain to the public, the more likely that you are to increase confidence. I have a simple sort of mantra which I trot out which is that secrecy breeds suspicion and contempt and openness breeds confidence and respect, and you know that is — it is as simple as that. If people at the top of organisations just grasp that and get it down right through all the ranks of their organisations, I think it would make a huge difference.

  • I was very, very struck by the paragraph 54 of your evidence about the problems with the manner in which the act is working, about Government departments, you know, who fail to meet their statutory obligations and the way they deal with things but also this issue about excessively expensive requests, and I think one of the things we have noticed about the evidence that we have had, both from requesters and from the public authorities, is this has become really quite a tribal battle. It reminds me when I was doing the Hunting Inquiry for Jack 15 years ago, there is very little movement from our side where it does seem to me there is an awful lot here where progress could be made being able to deal with some of these vexatious issues but at the same time dealing with some of these very delayed answers and ways in which things are operating in a very inefficient way, whereby, you know, the information is dragged out over a long period of time and this is what I think we are have been trying to refer to through the course of the day about some of uncertainties about the Act and some of the battlegrounds that have built up about the Act which seem to us not beyond the bounds of being able to be resolved.

  • The battleground is often about it seeming as though somebody is trying to hide something, cover up or whatever, isn’t it? It actually makes the situation worse and there is a simple answer I think in most cases as to, when mistakes have been made, the sooner you answer, the sooner the problem will go away actually and the sooner that public confidence will be restored.

  • Well, thank you very much, both of you, for both of your evidence and the way you have answered our questions. Thank you.

  • We will now have a break and we will be back at 2.25. (2.10 pm) (A short adjournment) (2.25 pm)

  • Introducing RT HON DOMINIC GRIEVE QC MP
  • Good afternoon and thank you so much for coming to see us this afternoon. Obviously the whole question of the veto has been quite a beleaguered issue in much of the consultation but, just to get things rolling, do you want to make an opening statement itself, or are you happy for us to ask you questions?

  • Thank you very much. I think I am very happy for you to ask the questions. I don’t think I have any particularly sort of profound pronouncement to make on this subject, but I am very happy to help you with your work.

  • Thank you very much.

  • Mr Grieve, on 16 October 2012, overriding a decision of the Upper Tribunal on 18 September 2012, you exercised the veto to prevent the Black Spider letters of the Prince of Wales being released. Would you like now, looking back on that, to give us your assessment of how damaging or not was the publication of those documents and perhaps, if you do regret the decision you made, perhaps you would tell us?

  • I don’t regret the decision I made at all and if I had to make the decision again today, I would make it in exactly the same terms as I made it at the time. Just to go back a little bit, obviously my role in this process came about because although the Government had objected to the publication and had taken the matter to the Tribunal, if there was any question of the exercise of the ministerial veto, it fell to me as Attorney General to do it because it concerned the papers of a previous administration. So it was for that reason that it landed on my lap and I have to say, when I read the decision of the Upper Tier Tribunal, I am sure well reasoned and well intentioned as it may be, I disagreed profoundly with it, I thought the reasoning was frankly very seriously flawed in its assessment of the public interest. That was my view. Of course there was a consultation process in Government as required, as I am sure you are aware, through the Cabinet Office, as to what other people’s views might be. Ultimately it was my decision whether or not to exercise the ministerial veto or not and I chose to do so. The reasons in a sense I gave in the reasons that were set out at the time. Perhaps to try to encapsulate that, it seemed to me that, by virtue of what I think is known as the education convention, by which the heir to the throne is educated in the role of becoming king, he has access to Government papers which are provided to him for that purpose and, in addition to that, he also performs a huge range of public functions, where he goes around the country and people impart information to him. So it places him, just as indeed it does the monarch, in a unique position to have both an understanding of what the background issues may be, because the Government papers are available to him, and also because I think it is fairly obvious, a pretty clear ability to get an understanding of what people think about various policies. In those circumstances, it seemed to me, is it in the public interest that he should be able to communicate what he has learnt from his own activities to Government ministers? And the answer to my mind is overwhelmingly that he should be able to do so and he cannot do that unless it is within a degree of confidentiality because the very nature of his role means that he should not be taking a partisan approach in public, but he is perfectly entitled to impart his own ideas as well as passing on the concerns of others in correspondence which he might wish to have with ministers and that would be prevented if the letters were published. Now, in actual fact, as you will be aware, we have changed the rules so in the future, the Prince of Wales’ correspondence as heir to the throne is protected under an absolute exemption so we were in one way dealing with what were historic documents and to an extent what happened there was a bit of a one-off. But for all that, it didn’t seem to me that the principles involved in all this were any different and that was why I exercised the veto, and I would do exactly the same thing today.

  • Thank you for that very clear explanation. It follows from what you said that it is your view that the Government should have the power, should continue to have the power, to veto decisions of Tribunals and the courts. Given the decision of the Supreme Court, insofar as one can deduce a single decision from it, is it your view that there should be further legislation to clarify the circumstances in which the veto can be exercised?

  • Here I think we move into a slightly different area. I had to apply the law, as I understood it to be. And certainly my understanding was that Parliament had expressly provided for a ministerial -

  • I am fine, just announcing the start of the day’s business, nothing more significant than that, it was my understanding that Parliament provided in section 53 for precisely for such a ministerial override. Obviously I have taken great interest in the Supreme Court judgment and indeed that of the Court of Appeal which preceded it, even though by the time we got to the Supreme Court, I was no longer in office. The Supreme Court, as you will be aware, were kind enough to say they didn’t think any of my reasoning was unreasonable but they thought that I had exercised my reasoning wrongly because I failed to understand the extremely limited scope which that reasoning was in fact going to be allowed, if you read Lord Neuberger’s judgment, it was the lead judgment, he makes clear that he thinks the interpretation of section 53 is extremely narrow. The point which he made and which clearly shines through the judgment and I think that of the majority was their deep concern at what they foresaw as I think a constitutional — I am not sure of the best way to describe it — but a constitutional insult might be the way to describe it, that we should have a situation where a minister of the Crown could by veto override a superior court of record. It seems to me there is a bit of an irony about this, because Jack Straw will know more about this than I do, but it is quite clear that of course when the Freedom of Information Act went through Parliament, the original idea was that the Tribunal was going to be merely advisory. Parliament in its wisdom decided that in many cases it would become mandatory but wanted to provide a ministerial override and I don’t think anybody really focused at the time we did this on whether we were perpetuating a constitutional enormity which was to give a minister of the Crown the power to override the court of record. So I am actually not unsympathetic to the view expressed by the Supreme Court, even though I found their interpretation of the clear terms of the statute somewhat surprising, that of a majority, I am not unsympathetic to the Supreme Court’s view that it is not the happiest place to be. It seems to me therefore that if we are to restore the ministerial veto because it has effectively been destroyed by that judgment, then it would probably be sensible to do it in a way which perhaps puts the question as to the way the Government wishes to approach this back to an earlier stage so that we don’t have a situation where we have ministers exercising ministerial vetoes which override the decisions of superior courts of record and I think that could probably be done. Of course it is up to Parliament, if Parliament were wanting just to come back and say if you didn’t think it was clear enough originally, we are going to make it clearer to you this time around, it is undoubtedly within Parliament’s power to do that.

  • On this point, and it is a very helpful answer, the Information Commissioner last week suggested to us that the veto should be limited to overturning his decisions so there would be no question of the Attorney General or any other minister of returning a decision of court of record. Leaving aside issues of the separation of powers which may be relevant to your point, would you support the view that the veto should be limited to the Information Commissioner’s decisions, and could you see any difficulties from exercising the veto at that stage?

  • The difficulty is this, isn’t it and I think this was quite apparent during my time in Government, that once you have a system which provides for a review by an Upper Tier, by a Tribunal, ministers, far from being gung-ho about exercising the ministerial veto tend on the whole not to want to do it unless it is absolutely necessary. So, as I can see for myself, not just with this example, but there were others when I was in Government, there was a strong and to my mind entirely understandable view: well, we should exhaust the Tribunal process first but at least we have a good argument and therefore we should wait to see whether the Tribunal — surely if the Tribunal is going to agree with us, which of course takes a bit of the heat off Government ministers of them being seen to veto a request for information which may be exciting quite a lot of public interest. So, as a consequence of that, I think I could see during my time in office that a trend was developing where the ministerial veto was only being used as a last resort. I myself don’t feel at all uncomfortable with the idea of ministers being faced with having to make this choice a little bit earlier and then facing up to the consequence, so to that extent, I think the Information Commissioner has a point. If ministers think the issue really is of fundamental importance, then making the decision earlier and then being subject to judicial review if people don’t like what we have done strikes me as being a perfectly sensible way forward. Of course it is true to say that if you do that then the ministers are deprived of the advantage of hearing the reasoning of the Tribunal which of course might have some bearing on their eventual decision. As I say, as it happens in the case of the Prince of Wales’ correspondence, I read very carefully the extremely closely reasoned conclusions of the Upper Tier Tribunal but I must say once I had done so I found myself in actually fairly fundamental disagreement with the way they had approached this matter.

  • Given that you have been kind enough to turn up and give evidence to us and you served for over four years as Attorney General, can I ask you about the protection for law officers’ advice? There is currently an exemption for the provision of advice for any of the law officers or any request for the provision of such advice. Is that an exemption that should and can be maintained, given the intense pressure there has been for the release of law officer’s advice and instructions?

  • I have always been of the view that if the law officers are to provide full and frank advice to Government, then it is necessary that unless the Government as the client wishes to waive their privilege, in a sense their legal professional privilege, it is desirable that that advice should be provided privately. There are obvious reasons for this. I realise that the fear is somehow thereafter when the Government presents its public case, it will massage the Attorney’s advice to present it in some more nuanced or perhaps less nuanced, more clear-cut way than the Attorney may have provided.

  • The Iraq example springs to mind.

  • The Iraq example, although we are still waiting for the Chilcot Inquiry to shed light on it. So I have always been a bit hesitant about pronouncing on this issue. Clearly the Attorney is both a politician and a lawyer. It is rather customary nowadays that the Prime Minister, when he is going to make a serious announcement, of which he has at least going to accept that he has taken the Attorney’s advice, usually requires the Attorney to sit rather close to him on the green Treasury benches of the House of Commons. The bottom line is, if the Attorney feels really uncomfortable about this, that the Prime Minister is going to say something that is rather at variance with what he advises, he should not be there, or he should resign. As long as he is satisfied that the Government is operating in a way that is compatible with the advice, then he should sit and look cheerful, or as cheerful as possible sitting next to the Prime Minister. But I do think that the danger we are going to run is that if it were to become routine for the Attorney’s advice to be published, then inevitably, the Attorney’s advice would start to be tailored for public consumption, whereas it is really important that the Attorney’s advice should not be tailored for public consumption but should set out both the pros and cons of a policy. One of the points I keep on making to people is lots of areas where the Attorney has to advise, it is possible for reasonable people to disagree in how the law should be interpreted, particularly when you are dealing with matters of international law where ultimately there is very frequently no Tribunal that could adjudicate on it, so it is a difficult area.

  • Following your helpful tip to the media to look carefully at where the Attorney General or the Solicitor General are sitting at any given time, can we turn briefly to the public interest test? Would you be in favour of an attempt being made to define more closely what the public interest is or do you prefer something more akin to a common law approach perhaps of leaving the public interest as a more elastic matter and one which is contextually driven? Discuss.

  • “Discuss”: it is a very difficult question to answer. Perhaps I could just say this: I didn’t find the problem interest test as set out in the Freedom of Information Act particularly wanting. I didn’t find it difficult to deal with myself, or I think on the occasions when I was considering it. Of course you could draw it more tightly if you wanted to. Of course, I mean there are two ways in which this could be approached, one is you could provide for more absolute preventions and then tighten up the test otherwise, that is one way of approaching it, or you leave the broad measure of the qualified exemptions as they are and the test as it is. At the risk of being unhelpful to the Committee, I don’t find that an easy question to answer and the danger is that just talking off the top of my head, I will come up with an answer I might regret afterwards. It is not unworkable. Before one starts to slate the Freedom of Information Act too much, you know, some people say it has cost too much money to run and ... but it has had, if you look at the problems associated with it, it has had some very good positives to it as well. I know Tony Blair said he regretted very much having done it but I don’t think I personally as a politician looking back on it 15 years later think it was the wrong direction of travel at all.

  • Thank you, Mr Straw will be pleased to hear that opinion.

  • Could I just ask one further question? We have had quite a lot of comment that the appeals process is lengthy and the question of whether or not it should be streamlined has come up several times, whether or not one or more layers in this process should be removed and do you have a view about that? I mean, if not, don’t worry.

  • It is lengthy and it would be, if it could be streamlined, that would be absolutely marvellous. Despite the fact lawyers are meant to earn money from lengthy legal processes, streamlining them is very desirable. The more interesting question is what you can do to achieve that. In many cases it is a matter of timing, it seems to me and fitting in just the volume which Tribunals or Commissioners have to deal with. You will be better placed than I will in taking your evidence as to what the best course of action will be. But clearly, taking the evidence of the Attorney General as an example, admittedly going all the way to the Supreme Court, this was a long drawn out process and of course that is not desirable, anything that can be done to try to shorten that would have been very good.

  • I think, if I correctly understood your evidence, Mr Grieve, you did suggest earlier on a possible streamlining in relation to the ministerial veto. If you exclude the First Tier Tribunal and allowed a point of law appeal to the Upper Tribunal or to the High Court on judicial review which comes to much the same sort of thing, that was what you had in mind?

  • Yes, I mean — well, I think what I had in mind was that the system provides for two parallel tracks. One is a system which goes up to the Upper Tier Tribunal and eventually potentially to the Court of Appeal on a point of law, which is a legal route. The second one is a route where the Government takes a view at an earlier stage that in fact this really is ministerial veto territory and therefore grasps that particular nettle, exercises the veto before the Tribunal stage is engaged and then accepts that there will be judicial review thereafter. Now, of course judicial review can take some time but it would avoid where we ended up, which is as I say in this later unfortunate situation where firstly ministers were seen as overriding me, overriding a decision of the superior court of record, which is not going to make the judiciary very comfortable for understandable reasons with the separation of powers and secondly, of course, pulls it out for an even longer period. So it would have the merit of shortening the system but it would mean that ministers were deprived of the advantage of seeing the Upper Tribunal’s reasoning before deciding on the veto, that would be a loss, no doubt about it. It is useful to have that information. Secondly, they would be deprived of that and they would also have a come to a decision faster which ministers are often rather reluctant to do. If they can put it off for a little bit, sometimes that suits them rather well.

  • Mr Grieve, can I just ask you this: Lord Neuberger in his lead judgment cited the fact that Dinah Rose QC who was counsel for Mr Evans and The Guardian had, as it were, conceded that if the veto had been exercised at the point of the Information Commissioner’s decision then none of the major constitutional — I paraphrase — issues that arose later would have arisen. Lord Neuberger, having said that, then went on to say, paragraph 80: “There must, however, be a powerful case for saying it would at least often be a misuse of the section 53 veto power to issue a certificate on certain grounds when it would be possible to appeal to the Tribunal under section 57 on the same grounds.“ In other words, a test of reasonableness, not whether you had reasonable arguments but whether, as it were, it was reasonable to exercise a veto would be whether an appeal would lie. Do you think it is possible to deal with that issue by careful drafting?

  • Well, I would hope it was, but it does mean — those effective words, and obviously I have read the judgment, is that section 53 is dead. The clear implication of that was that even if you wanted to use section 53 at the moment to exercise the veto at an earlier stage, you might well fall foul of the Supreme Court at the end of the day on reasonableness of the route you have taken. But I think it is open to Parliament, if it is clear, to deal with that and I don’t — it would be interesting to know, you might obviously want to hear from some jurists or other lawyers about this, about whether this is such an unusual route, but I don’t find myself seeing that there is a constitutional horror in that at an early stage, the Government deciding whether this is an issue that is so important that the minister should make the decision and then take the consequences, or say that essentially the minister says that, although they may be arguing against it, they are quite prepared to see it go through a judicial process of review to determine whether it should be put in the public domain or not. I don’t see that as being in some way conceptually wrong, but somebody may persuade you or me that I am wrong about that, but I find it difficult to see why that concept should be wrong.

  • Thank you. It has been very helpful and we have overrun by a few minutes, but it was very interesting material.

  • Introducing RT HON LORD BEITH
  • Good afternoon, very nice to see you.

  • Do you have anything by way of opening remarks to make?

  • If I may, partly to make clear that obviously I cannot speak on behalf of the Justice Committee which is a new form in a new Parliament, but I stand by the conclusions in its 2012 report which had all party support and indeed three of its then members are now ministers and one is the Leader of the Opposition. Freedom of Information is we thought a significant enhancement of our democracy and its benefits outweighed its problems and disadvantages. The Committee did not find, and nor did the constitutional Unit on whose research we relied to some extent, that there was much reliable evidence on the inhibiting of policy discussion discussions at senior level, but we acknowledged there might be a perception that there was no longer a sufficiently safe space and we recognised that there would be occasions when it was right for the ministerial veto to be used to protect that space. The key point I want to make to you this afternoon, apart from one other different point, is that Freedom of Information is only one of several ways in which the safe space is threatened. Leaks, disclosures to court, public inquiries, publication under the 30 year rule, memoirs now published frequently by people who have barely left office who must have been writing extensively while in office, all of these are use routes to information emerging from that supposedly safe space and even if the Freedom of Information Act were to be altered, you could not say, as a permanent secretary in the Department: don’t worry, you can put what you like in that document, it will never be seen because we have modified the Freedom of Information Act, because in the process of doing that, I think you would have done great harm to something which is of real public benefit and it is better to have a general right than merely a selective opportunity to disclose only one part of the story. FOI means that the citizen, organisations and the media can get access to the whole story, not just the information selected by individual ministers, squabbling special advisers, people with a grudge or the Number 10 Press Office. The one other point I would make would be about privatisation and outsourcing, simply to underline that we observed in our report that, where public publications were outsourced, particularly in local government, there were already arrangements in hand in many instances for the necessary information for FOI to be available to the authority which was then held responsible for producing it. That is in our view the right way to go about it and if there is any question about it not being done by some bodies outsourcing functions, that should be attended to.

  • Thank you very much. Patricia?

  • You spoke of the balance in public interest safe space and the public interest in revealing Government deliberations. Your report concluded that the existing protections properly used were sufficient to protect the safe space, which I think you have just repeated to us. If so, why does the Act continue to cause so much anxiety to officials in Government?

  • What I did not seek to imply is that there had been no argument and no questions about the safe space. Indeed quite a lot has happened since the Committee produced its report but the question you actually asked me is why is it still discussed. Well, it is inconvenient to ministers and to officials and some of the particular instances when information is refused, the various powers are exercised, clearly give rise to argument and discussion in itself and the organisations which are seeking the information then make waves about it. This is an area about which Government and ministers and some civil servants are very sensitive and there will be argument but that argument is a sign of the value of the information disclosed. Most of us, particularly in Parliament, have experience of the inconvenience of disclosure, I put it no more strongly than that, because you then have to mount an explanation for things which on the face of it are criticised, but that is accountability.

  • But you prefaced that remark by saying there were proper questions about its operation. How would you characterise those?

  • What I was describing rather loosely was what you have just been discussing with the former Attorney General, which is the precise definition and reliability of the safe space protection provided by the veto is not entirely clear. Now, I want to preface anything further I say about it by pointing out that the disclosures that have taken place have not brought the sky in, the sun has not ceased to shine. Public administration has not collapsed and therefore, although there are some interesting legal arguments around this, and you compose them very effectively in the exchanges that have just taken place, to respond to those difficulties by in any way diminishing the ability of citizens and organisations and the media to achieve greater accountability would be a great mistake.

  • But you would agree the Supreme Court decision has created additional uncertainty over the use of the veto?

  • It has probably increased the uncertainty to which the Committee referred when it felt that quite a lot of uncertainty would be removed if people in public office were reminded of what the existing rules were. Clearly the existing rules are less clear than they appeared to be before the Supreme Court ruling, but I am cautioning that this interesting fascinating argument has to be set against both the huge benefits of Freedom of Information and the experience of the very disclosures which have occasioned these legal arguments which have now taken place without recording consequences.

  • Of course, but we are in new territory following the Supreme Court decision and I wonder if you have any thoughts about whether there might be positive ways of obtaining the benefits you have described while reducing the additional level of uncertainty that has been imported as a result of that decision.

  • I think there is a discussion to be had about the structure of the appeals system and the various levels it has and you have engaged with Dominic Grieve on some of that and my colleague Lord Marks has put forward some proposals on that. I think that could be helpful from various points of view. But I return constantly to the point that, even if you had restored some of the safety which you perhaps thought originally could exist in terms of advising people that FOI would not be attracted by that particular discussion in the document, those same discussions in documents are exposed to so many other risks of disclosure that you would be misleading public servants if you said “don’t worry about the possibility that some day somebody may possibly see what you have written”. It is not good advice to give them anyway, Indeed in many cases civil servants have an interest in the documents showing that they pointed out the problems which might arise rather than remaining silent. If you want to take one of most dramatic recent examples, Oliver Letwin may feel that his views have changed very substantially since he wrote a paper so many years ago which caused him such distress at new year, but that emerged not from the essence of the Freedom of Information but from the 30 year rule which I am sure you have various legislation.

  • We heard last week from Lord O’Donnell about his particular concerns about the public interest test and that was explored a little bit in the last session, which I think you were present for. Lord O’Donnell issued a plea for greater clarity, more certainty, do you think there is anything in this? How could one clarify it, or is the public interest something that evolves over time as in fact we heard from other people giving evidence last week?

  • Well, that was as far as we felt able to go in accommodating Lord O’Donnell as points to us, that the greater clarity was desirable but of course the public interest test cannot be used against every disclosure the Government does not like, on the grounds that the repeated disclosures will lead to people believing there is no safe space, even though in each of the given cases, the relevant bodies ruled that there was a real public interest in the information becoming known but it has become quite a difficult area, as your earlier discussion showed.

  • Could I just ask you to say a little bit more about the appeals structure and the point at which any necessary ministerial veto, which I think your Committee accepted as a necessary backstop, the point at which it should be exercised and whether Government should legislate to clarify?

  • Well, I was very interested in what Dominic Grieve said about that, about the advantages in the Government having to consider the reasoning of the Upper Tribunal before deciding whether to exercise its veto and I can see merit in that, so I do not have a firm view about it other than that the existing system is multi-layered and complicated and takes a long time to achieve objectives which all parties would want to get to more quickly. It is an area worth discussion, but I suppose I have an underlying reluctance to see new legislation in an area where we have legislated to such beneficial effect and we could easily get it wrong again, insofar as there is a technical defect in that area which the Supreme Court found in the idea of the minister overruling a court of record. That particular bit of the legislation arose in the detailed discussion which took place as Parliament sought to get it right but it is very difficult to find a perfect answer and I would not want us to do so at the risk of damaging the fundamental principles.

  • We seem to have got into a slightly strange space, it seems to me, where the Campaign for Freedom of Information has pointed out that over the last five years, in the bulk of the cases that have gone to the Information Commissioner, he has upheld the public authorities’ view in terms of the section 35. There have then also been quite a lot of cases where the First Tier Tribunal has overturned the Information Commissioner on this, which suggests to me — it demonstrates to me the extent to which this issue of balancing the public interest test is a fine art rather than something is automatic, so the outcome has not been particularly harmful in relation to information that has been released and yet, as Lord O’Donnell said, people still feel in a state of great uncertainty such that people still feel they are playing the Lottery each time they find themselves in this position because the outcome is uncertainty, and what we have been trying to probe is to what extent it might be possible to clarify some of this. So not that the outcome was different in terms of the information that was released, but so that in a sense both parties to both the requesters and the public authority could have a greater degree of certainty to how this was going to turn out. Maybe it is only inherent in public interest tests that there will always be a substantial uncertainty.

  • The outcome of art can never be certain; the answer is in your own question. And the more I have looked at it, the more I have questioned how much certainty you can really offer. What you are saying, if the process operates as it was intended to do, was that the — that information will be disclosed unless to do so would impinge on the necessity for a collective Cabinet responsibility and high level policy discussion at which risks are fully and frankly examined. There may be circumstances in which even that information will be disclosed because there is an overriding public interest in doing so but there is a general recognition that as far as possible we should try to preserve that space. You cannot make it more certain than that and if you did, you would be saying, at least in some cases, that some matters where you really should have known what happened in that discussion will not be known, or at least not until the 30 year rule.

  • You make some extremely valid points about the difficulty of achieving certainty. But perhaps it is possible to achieve greater clarity.

  • Yes, I think it is reasonable to try to do so. My suspicion is that if the finest minds we can send to put together some legislative change sought to do that, either it would not work, or it would have the unintended effect of inhibiting a general right, and why, in order to stop one rule of disclosure when there are so many others that are more selective in character? So I am really urging extreme caution in an area where we have, as we have demonstrated today, been unable to predict with certainty what the outcome of the words in the legislation would be. At the moment we have a reasonably happy outcome, except for those governments that are embarrassed by things that are disclosed.

  • The administrative court now produces a digest of decisions which provide guidance to judges who may encounter similar issues from time to time and for those who sit as judges in the admin court, it is very useful. Would you favour the production of practical guidance and a digest of decisions to the same end in this difficult area?

  • Yes, I would. I think as a general practice in law and tribunals, they know should know how previous cases have been decided.

  • Thank you very much.

  • Patricia, you have another point?

  • Just a couple more I would like to ask. It was shifting subject, we were all so focused on the safe space and veto and clarity, of course. This is reverting to the cost of process.

  • The cost of the process of the FOI requests to authorities and to meeting them. We have received evidence about the cost of activities over which the public authorities have no choice or control, like necessary redactions to protect personal information and so on and the fact that these cannot be counted within the cost of the process at present. Your report in 2012 concluded it was not appropriate for activities like redaction to be included in assessing whether or not a request exceeded the cost limit. I wonder whether you might not reflect on the basis of what we have heard that there are particular cases where the public authority has no choice and which are additional to the normal costs of meeting the request?

  • We received evidence in both directions as I recall and we reached the conclusion that it would be — it was neither necessary nor desirable to complicate the system by introducing a charge caused by redaction or altering the limit to take account of redaction and a number of the public authorities I spoke to did not seem actively to seek that particular outcome. It looked to us that it would both be complicated and could of course bring into a charging regime requests which otherwise would not be so treated.

  • Thank you. The Information Commissioner referred us to a number of the recommendations made by your Committee that have not been implemented. Are there any which you would particularly wish to draw to our attention?

  • Actually, I would like to have a clearer picture of how much progress there has been on the outsourcing privatisation issue I mentioned earlier because the information we had, which is probably coming out of date now, and many more functions have taken that route, some of our proposals relating to university research were implemented but as with many reports if I went through, I could probably pick up others that the public ought to get hold of, but this was not one of those reports that was urging the Government to legislation generally; rather to the contrary.

  • I think you have made that clear. Thank you very much.

  • Thank you very much, Lord Beith.

  • Introducing PROFESSOR CHRISTOPHER FORSYTH AND PROFESSOR RICHARD EKINS
  • Good afternoon, and thank you so much for coming. We have all had a copy of your report and there has been a good deal of interest in it, and as you will have heard this afternoon, this subject has come up a number of times and we are very grateful that you are willing to come here to talk to us about it. Do you want to make any opening remarks?

  • A few. Thank you for having us here to speak to you. We will make a few remarks just to amplify part of the paper. We take a view, as you see in the report, that the action you see in Evans is problematic in all core terms, but of course as you have seen this afternoon, and elsewhere there is an argument that the ministerial veto is itself problematic in more broad terms, and that seems to be a shared premise in the Evans judgment of the Supreme Court, but it seems to us to be a misconceived line of argument. The relevant question at least for decision by Departments, the Information Commissioner, the Upper Tribunal and the Attorney General, was the same question about the bounds of public interest and it is not a question especially suited, it seems to us, for judicial determination; on the contrary it is a classic question for the Executive. So one might argue that it is constitutionally problematic for Parliament to authorise a judicial body to determine that question. It is arguable but it seems to us that it is not problematic to reserve to ministers the final decision about where the balance of public interest lies and of course one might choose or not choose to have an Executive override, but that choice does not seem to us to be unconstitutional.

  • And I thank the Commission also for inviting us today before I begin my introductory remarks. Our concern is primarily constitutional. The Supreme Court in Evans misinterpreted section 53 to give it a meaning that Parliament clearly did not intend. It seems to us almost undeniable that the ministerial veto was clearly intended to be a central feature of the Act, to use the words that Lord Wilson did in his dissent. But the majority judgments in Evans, particularly that of Lord Neuberger, adopt a meaning of section 53 that denudes the section of significance. This is contrary to the scheme of the 2000 Act, in which Parliament chose that where the information involved the subject to qualified exemption, there should be an Executive veto with the minister having the final word of where the balance of public interest lay. The effect of Evans is to change that whole scheme of the Act without any Parliamentary warrant therefore and we think that is constitutionally improper. It must be accepted by all that administer the law, including the Supreme Court, that the laws laid down by Parliament should be applied. The heart of the Supreme Court’s justification for its decision lies in the fact if the veto operated as Parliament intended, the executive would be overruling a judicial decision contrary, said Lord Neuberger, to constitutional principle. Whilst that situation is unusual it is not unprecedented, and if what Parliament enacted was such a veto, the Supreme Court, and everyone else for that matter, must accept that. It may be that one thinks that the Executive override is unnecessary or redundant, there could be better ways of doing, that but while Parliament has so enacted the 2000 Act, we have to accept that and I think that is our prime constitutional starting point. I think we are going to want to say something else about alternatives to direct legislative overruling of the Evans case. Some of the discussion made in earlier sessions may have covered that and we will probably have an opportunity to talk about that.

  • Going straight to that point, you said, Professor Forsyth, a moment ago that there may be better ways of doing it, you thought there might be alternatives. Would you like to expand on that, please?

  • I have listened very intently and with great interest to the suggestion of the Information Commissioner that the ministerial veto should only affect decisions of the Information Commissioner. That does not seem to me to be a satisfactory alternative and the reason why that is so is in part what do you do when the Information Commissioner upholds the public authority. There is no veto to be exercised then, and it may only become clear that a veto is needed when the Upper Tribunal takes a different view of where the public interest lies. So that strikes me as a practical difficulty with that particular solution, and you have of course the problem which I think the Chairman diverted to, that Lord Neuberger in his judgment specifically says that, if you were to exercise the veto while there was still a live appeal outstanding, that would be a misuse of power.

  • I think Lord Neuberger said that if it were possible to appeal, not an appeal outstanding.

  • You have to exercise your right of appeal rather than veto.

  • That would go to the issue of reasonableness.

  • Accepting this conundrum, what is your solution to this?

  • Our primary solution that our paper argues for is that of course remedial legislation should be passed that reinstates the veto that Parliament actually intended, but if the Commission is looking for another way out, what occurs to us — I think Richard agrees with me on this — is that one should make a slight amendment to I think it would be section 58 of the Act, dealing with on what grounds you can appeal and to remove the provision that allows an appeal to lie to the Upper Tribunal or beyond the Commissioner on the grounds of taking a different view of the balance of interest. Crucially this is about where the balance of public interest lies and that is, in our view, essentially an Executive function, not a judicial function. While why we are in this difficulty is because we allowed the judges, whether in the Upper Tribunal or beyond that, to take a view on where the balance of public interest lies. That is an Executive function and it should be exercised by the Executive. So if you were to exclude the possibility of appealing on the ground of the balance of public interest household been got wrong by the Information Commissioner, then there could be appeals beyond the Upper Tribunal and Supreme Court or wherever on grounds other than that, but the public interest would be protected from a judicial override, so to speak. It would of course be possible always to judicially review the Information Commissioner and so forth, but that strikes me as a better solution, certainly restricting -

  • As it were, section 58(1) has two limbs: the first is an appeal against the notice against which the appeal is brought is not in accordance with the law, or to the extent that the notice involved an exercise of discretion by the Commissioner that he ought to have exercised his discretion differently. So, Professor Forsyth, you are saying as it were the second limb should be deleted?

  • Should be deleted or appropriately amended.

  • Let me ask you this question: would the appeal to the Tribunal on a point of law then be wider or the same as if there were a challenge to an Information Commissioner or ministerial decision by way of judicial review? Would they amount to the same thing or would they be different?

  • I think in principle they would be much the same thing in the sense that whether on the appeal or whether on the judicial review, it should be recognised that the question of the balance of public interest is something that lies within the ambit of the Executive, not within the ambit of the judiciary. So it would not be a ground of judicial review to say: you have the balance of public interest wrong. You could still challenge it, of course, if there was something outrageous in the finding of the balance of public interest, but in the normal run of events where it could go one way or it could go the other way, you would not be able to get judicial review on the basis that the balance of public interest had been got wrong. Similarly with the amendment to section 58, as we have discussed, you would not be able to go to the Upper Tribunal on the balance of public interest point either. This doesn’t mean to say that nobody cares about the balance of public interest, of course, as the minister who exercises the veto would be accountable to Parliament in the ways that we have described in our paper which I am sure are familiar to the Commission and -

  • Can I just say I think this is a perfectly reasonable alternative but I do not have a view on the merits of these alternative as ideal Freedom of Information, I think either alternative is constitutionally proper and for Parliament to choose, and the question partly is: how much value is there in the Upper Tribunal reconsidering the questions of the balance of public interest? But if they are going to do that, it makes some sense and it shouldn’t be pulled off the table for there to be a reservation of that question to ministers, the public interest questions. In which case I would want to reinstate, to restore the veto rather than letting it be defunct.

  • I will deal with an earlier point you made, Professor Forsyth, which arose in the Evans case where in the Evans case the Information Commissioner confirmed the decision of the public authority to withhold disclosure and there was therefore no notice which could be vetoed. Would one way of dealing with that issue be to have — this has been suggested to us, that there would be a power to the relevant minister to exercise and override — well, to either to override the Commissioner’s decision where he was requiring disclosure or to confirm it as in Evans where he was coming to the same view as the public authority?

  • So the suggestion is that the minister before there has ever been an appeal against a decision upholding the public authority would confirm it?

  • Yes, so it would have the same — as we know, in the case of Evans, unlike all the other veto cases of which I am aware, the Commissioner came to the same view as the public authorities that there was nothing within the current terms of section 53 for the relevant minister to override by way of section 53 veto, so that is why -

  • Can I say it is veto or confirmation?

  • These cases take a long time, or as we know, they can do. And the balance of public interest should be made at the time of disclosure, I think, so there is a risk I think of requiring a veto or confirmation at the Information Commissioner point; namely it might not look as though at this point in time that it would be damaging to public interest, there would be disclosure and so one does not exercise the confirmation of power and yet two years later, one takes a different view or one might want to take a different view or be entitled to, should be entitled to and yet have that option then being pulled out.

  • Can I put this point: you have read the Evans judgments carefully, so have all members of the Commission, including me. One thing that comes through very clearly in these is a sort of sense by the judges who considered the matter, the Court of Appeal and the majority in the Supreme Court, of really irritation that a huge amount of time had been spent, particularly in the Upper Tribunal, hearing the evidence and the expert witnesses and so on, and yet all of that was rendered nugatory by a stroke of the Attorney General’s pen. And the implication from that — and indeed from Lord Neuberger quoting Dinah Rose, counsel for Evans — is that some of this irritation would have been avoided, and the sort of challenge to the supremacy of the courts, if the veto decision had been exercisable at an earlier stage. Do you think there is something in that?

  • I am sure the court was irritated and it might be right that it would save considerable time and expense at least in some cases for this all to be brought forward, but there is a cost in so doing. One can deal with that problem, I think, by, as Professor Forsyth suggested, cutting off the right of appeal on the grounds of public interest, it has a cost as well. I think the court’s view, and the Supreme Court and the Court of Appeal for that matter, is viewing it just too crudely, it is a judicial body decision to still override a certain rule of law, and when you look at the particular questions being decided, the origins of the scheme, the way this comes before a superior judicial body at all, because the initial Tribunal in which this is first conferred is not a court of record. It is almost accidental that it comes before a court of record by way of the restructuring of the Tribunals. So I think they are looking at it too crudely and if one looks at it in a slightly more fine-grained way, this constitutional problem just dissolves, really.

  • It dissolves because this is not a like a High Court issuing a writ of habeas corpus and a minister cancelling it, this is a question about the balance of public interest and it has been conferred with the same question that each of the bodies has to answer, the Department, the Information Commissioner and so forth. It is perfectly reasonable, I am not saying it is a good idea or not, to confer a scheme that requires each of these different bodies to make the same decision and yet leave there to be a final catch-all on the part of ministers to make the same judgment again, which is not a classically judicial judgment to be making at all. You can give it to a court, of course you can, you can give to a Tribunal and deem the Tribunal a court, but it doesn’t change the nature of the question.

  • Last question from me, I think you have already indicated the answer, but as you will have heard, we have had some evidence that there should be a streamlining of the appeal process. If Professor Forsyth’s proposal to remove the second limb of 58.1 was adopted, that in any event would reduce the grounds for appeal, but do you have any general views about streamlining the appeal process? Let us say 58 stayed as it was, is there scope for reducing the grounds of appeal?

  • I think there is a general issue.

  • It is a general issue. If you have not -

  • The laws’ delays are well known to all of us and how we can employ them in this situation. I am not sure I have anything unique to say.

  • You might have something well informed. Unique is another matter.

  • This is not an answer to your question, I am afraid, I am not going to help you streamline it, but we need to be quite careful in reframing section 58 if were to go down to route, because what does count as the ground of appeal, if that is unclear then the same question will arise again and the court heard — you quoted the remarks of Lord Neuberger before, if this looks as though it is an Executive action that is cutting of what would otherwise be a robust right of appeal, that executive action and the legislative conferral will be viewed — interpreted perhaps in surprising ways, so I think one would need to be very careful in how one would frame that.

  • I see this ambiguity because there was one case I was looking at where the Upper Tribunal was questioning the interpretation I think it was of the First Tribunal in relation to some of the evidence that it had used in the public interest test which had classified as overruling it on a point of law, rather than overruling it on a point of a different view about the public interest. I am not quite sure, you know, that there is a very clear demarcation between the two things.

  • I think the question of law in section 58 might well be taken to go to the question of the balance of public interests in section 1 and so forth. So removing the — certainly removing the question of discretion, it might not answer the point, it might go rather to discretion as to the particular orders and so forth.

  • Thank you very much. Thank you for your time and thank you for your paper which is a very interesting contribution to this debate.

  • Introducing MR MAURICE FRANKEL
  • Mr Frankel, thank you so much for coming and you have been extraordinarily patient sitting through the two sessions that we have had. The times I have tried to interpret your expression as the days have gone on but I think it would be better that we should actually hear from you in person. And we have allocated a reasonable amount of time, where I hope we can deal with the issues that we have. Particularly thank you for your evidence, which is very helpful and you go into a great deal of detail in terms of analysing how particular issues that we have been asked to look at have developed over time. Do you want say anything by way of introductory remarks?

  • There are a number of issues from the previous evidence sessions today and previously that I would like to respond to, but I would be very happy to try a bring them in in response to your questions rather than take up another slot just speaking before you put the issues you want to hear from me.

  • May I echo the thanks of the Chairman, Mr Frankel, for all the evidence you and your colleagues have put forward and the huge assiduity you have put into this issue, not only these proceedings but over many years check. Just picking up your first point, you were here, as you have been for all the oral evidence, for the evidence from Councillor David Simmonds representing the Local Government Association, and here I paraphrase, but he said words to the effect that if he were asked or local authorities were asked for information, then they could either give it straight away or they would have to say: this is an FOI request, if you want to make an FOI request, you have to go into the bureaucratic machine. I was surprised about this, but do you think the Freedom of Information Act either was intended or does operate in this way? Surely if someone is given the information, then they are given the information?

  • I was very surprised by what Mr Simmonds said. Section 11 allows the response to be made by in accordance with a requester’s preference as long as it is reasonable practicable, and he obviously picked up the reasonably, which he said was not there. So in other words no requester can ask the authority to do something very burdensome if there is a simpler way of doing it. There is a second thing which section 11 again does, it sets out three — now four — ways of responding to the request which involve providing the information in in a permanent form or in another form acceptable to the applicant. That means a non-permanent form, a most common non-permanent form is to tell the person. That is what that must mean. So when he said you cannot give the answer by telling the person, that is wrong as a matter of the Act. But it is worse than that because if you look at the LGA’s evidence they are calling for that phrase to be deleted from section 11. They are calling for the phrase that allows them to answer simply to be deleted on the mistaken grounds that gives the requester the power to force disclosure in a form the requester chooses to which they have no grounds to object on practicality and cost. So I thought that was completely off target.

  • I want to make sure I understand this, and I am not sure I do, because the Act says the information has to be provided in accordance with a preference of the requester, unless it is not reasonably practicable to do so. Well, even though the information may more readily be available in a different form, even though it may be available, even though it may have been given, the requester could still argue that it is reasonably practicable to give it in a form which he wants.

  • Well, there are two separate questions tied up here. If the information is already publicly available then there is an exemption, that is section 21, or section 22, it is already available and section 11 doesn’t come into it. You cannot force the authority to rewrite the information and tabulate it differently because you prefer it; if it is already publicly available, you cite the exemption.

  • But if it is an FOI request?

  • If it is an FOI request, so long as all the requested public information is requested already, the authority can cite the exemption and it is not required to retabulate it.

  • But if the exemption does not apply so it is not publicly available, but the situation which Councillor Simmonds identified where he says to the requester: look, I could give you this information, I could write you a letter, it would take much longer if you go through the FOI route, and the requester says: yes, I want to go through the FOI route and the authority cannot argue that it is not reasonably practicable to give the information in that way, he has to do it.

  • Yes, but that doesn’t rule out — the authority cannot insist on giving it to you verbally if you, the requester -

  • Not verbally, in a letter.

  • The letter is a perfectly conventional way of responding to an FOI request.

  • Aren’t we confusing two issues here? The Local Government Association said you cannot give it orally, and you are pointing out, probably rightly, that you can give it orally. But if the person is not prepared to accept it orally, then you go into section 21.

  • You go into section 21 if it is already available but if it is not available you have to provide it in writing.

  • But if you have already written a letter giving information, even if it has not got “FOI request reply” stamped on it, that has already been given and that is the end of it.

  • Yes, you provide the information, there is recent decision from a Court of Appeal, an Upper Tribunal Court of Appeal, you can say: if it is in a pdf and you want it in an Excel format and that is reasonably practical, you can require it in that format.

  • We are familiar with that.

  • Could I just pick up another point that was raised during the course of the evidence session itself and that was from Mr Clifton of the Press Association, and Mr Satchwell from the Society of Editors, Mr Satchwell said that coordination, cooperation, between, as it were, the two sides had been an understanding greatly helped when there was a users group, and he thought that would be very helpful for the future. What is your view about this?

  • I completely agree with that. I was a member of that same user group, a minister sat at it, a Commissioner sat at it, Local Government Association, NHS, some independent people, two press organisations and it was a very useful forum at which problems that the other side hadn’t seen were brought by one party or another. I think it was helpful in improving people’s understanding of what was working and not working.

  • If we were to recommend this, would it not be a good idea, looking forward, for there to be someone there from the Office of National Statistics as well because quite a lot of — it seems to me, we have not taken evidence on this, but that some of the really important information that people are having to request through FOI applications could better be made available in a data series that are published routinely by people subject to the ONS government.

  • Whether that is for the ONS or whether that is something to be done through the open data movement is a separate question but I agree with the thrust of what you are saying, one should look at whether it should be done by publishing datasets so the information is available routinely.

  • I mean, the area with which I am very familiar is criminal justice and the more you can provide reliable data through the official statistics, the less people have to get frustrated about the fact that the particular information is not available. Could I, Mr Frankel, move on now to deal with this issue of the relationship between section 35 and 36: Safe space and chilling effect.

  • And particularly this argument which is at the heart of much of the evidence we have received which is either concern or support, according to your point of view, for the notion that safe space, basically, in principle — the principle ends when a decision is made and then all that is left is chilling effect. Do you think it is that mechanical and do you accept the issue of a safe space may well continue given the reality of decision making in government which is on the same issue, you will have a series of submissions coming forward.

  • I don’t think it is a mechanical process, apart from anything else even if one accepts the safe space ends when a decision is taken. The test is not: is there a chilling effect, the test is: is disclosure in the public interest, where is the balance? And it is commonly translated as chilling effect but there may be other consequences. The second thing is the Upper Tribunal has recently ruled that particularly with a bill going through Parliament you can go in and out of safe space as an issue which appeared to be closed is reopened. But I think the way in which safe space is used in the FOI context means why you are taking the decision and then you go on to some other concept once the decision has been taken, but the Tribunal at a very early stage said they reject the endless scene of consideration where Government says: well, we are always considering all OR policies and therefore there is never an end to the safe space because you know, ten years, after the legislation has passed we are still considering, we have still got a background -

  • That is not my point, by the way. But there is a parallel issue here which is whether, as it were, the horizontal safeguarding that is provided both within section 35 and 36 for ministers to other ministers’ private offices and so on is stronger than the vertical protection provided for ministers and their officials. Have you got a view about that?

  • I know I picked this up from your questioning the other day. I don’t particularly feel that to be the case. I think there are two things to take into account. The first is one of the exemptions refers explicitly to ministerial communications, so when the Government is arguing the case for ministerial communications, that is how they are describing the argument. The exemption that applies to discussions between officials and ministers is policy formulation more generally. Now, again, it may very often reflect the way the argument is put by the Government’s lawyers to the extent to which they are talking about an effect on the ability of officials to express their views properly or whether they are talking about a general effect on policy formulation but certainly in the survey that we did, there are a series of cases where the decision against disclosure was clearly taken in order to protect the position of officials in discussing with each other or discussing or providing advice to ministers. The clearest of those is the example of the draft Parliamentary questions where officials were commenting on what they assumed the MP who was putting the question down, what their motive or interest was and they didn’t want to dissuade the official — make the official feel vulnerable about expressing a possibly indiscrete view if it was immediately going to be disclosed to the MP who was asking the question. I don’t think — I don’t myself detect that difference because I think it is — you don’t see it very often but the — I am sure what the Tribunal say is if the ministers are just discussing a convenient day to make an announcement, they would not give much weight to that either, it is a ministerial communication which doesn’t touch what they are now calling the underlying -

  • I am not talking about stuff like that. I am not talking about that. To go back to a point I was making to Mr Satchwell and Mr Clifton, the preserving confidence and trust between officials and ministers seem to me to be absolutely fundamental to good governance, particularly in the context in which the one, as it were, does not choose the other. That it seems to me to be a really powerful reason for there to be safeguards against premature publication of advice, even after a decision has been taken.

  • I don’t see it quite like that. I think confidence and trust are not therefore to do with FOI disclosure. Confidence of trust is to do with leaks. If an official leaks — the minister said to the official what the discussion is, that goes to the heart of confidence and trust between the minister and his or her advisers. If it is disclosed under FOI, the official has no responsibility for the decision to disclose -

  • — at all. And I know that is — I am saying the confidence and trust may not be the right way to describe what is at stake here.

  • Put it this way: I readily accept that leaks are pernicious wherever they have come from and they will certainly undermine confidence and trust. If there is a suspicion — I cannot think of an occasion where I was subject to a leak, maybe one, but it is very rare for the official concerned to be causing the leak, extremely rare, that would make it worse, but I am talking about, as it were, and this is a subtle — I am not arguing, of course the material should never be disclosed, this is about the time at which it should be disclosed. It is very difficult to put your finger on this but if officials, you know, can be middle-ranking officials these days, quite young, are having to tell senior ministers some truths which the senior ministers may not be terribly keen on hearing, it will just make their life more difficult if there is a possibility that what they are saying to these senior people, which could be embarrassing if it comes out, is going to be disclosed. Is that something you accept?

  • I think that is a question of how long — how sensitive the content of what the official said is and how long after it has been said the question of disclosure is raised. But I do accept that if an official is telling the minister “what you are doing is unworkable, minister, in my opinion”, you have to look at the implications of disclosing that, certainly in an immediate, in the near future, so -

  • One last set of questions I wanted to raise which is about the position of contractors, including charities. First, it is right, isn’t it, that at the moment, some contractors are covered by the Act, for example, under I think paragraph 43A of schedule 1, general practitioners are already covered and these are entirely private institutions. I don’t think we have had any evidence at all from general practitioners that this has been too great a burden on them. Are you aware of any evidence to that effect?

  • There have been cases where the vexatious test has come in at a much earlier stage in relation to general practitioners who are public authorities individually in their own right, so in that way they are not exposed to as much work, the minister will not expose them to the same levels of burden, but they are thought of as part of the National Health Service but in law, they may be contractors.

  • In reality they are contractors as well.

  • But overall your view is although they are private contractors, which they are, it is very different from a hospital doctor, them being subject to FOI has been relatively uncontroversial.

  • And your view is that this provision the same principle should follow in respect of people, say, contracting with Social Service departments and other local authorities, and indeed more widely with the NHS?

  • Would you have a de minimis level for very small -

  • We would not bring all contractors under the Act as public authorities. What we would say is we would bring the major contractors in as public authorities, particularly the very large players whose work is -

  • Would that mean all of their work was subjected -

  • No, only the public authority. Those who still had private sector work wouldn’t be affected in that respect. The general run of contractors would be covered by means of a request to the public authority. Now, they are already but the difference is that the right of access to the information held by authority, and that includes information held by somebody else on behalf of the authority, so the question is: does the contractor hold information on behalf of the authority? There is no dispute that the contract is done on behalf of the authority, the function is on behalf of the authority but peculiarly, the information relating to the performance of the function is not held on behalf of the authority unless the contract, either by a sufficiently wide general contractual clause or by specifically requiring the contractor to record that information and provide it if required, that is the test. Where the contract does not do that, and there is usually no right of access by means of a request to the contractor, so what we have proposed is you have simply an amendment to the FOI Act which says all information held by contractors or contractors providing services relating to the performance of the contract is deemed to be held on behalf of the public authority and that deals with that problem, it brings it immediately within the scope of the FOI Act and in that case, I don’t think it matters too much, I can still talk about it, whether contractors were a very small charity or not because all they have to do is explain to the authority what they have done that meets the terms of the request to the authority. They don’t have to learn how the Act operates.

  • Can I just follow that up on the point, just to be clear and I think you have made it clear: are you saying there is no distinction in principle to be drawn between a contractor and a charity provided the charity falls within the test that you have described of on behalf of the public authority?

  • What I am saying is where the charity is a contractor, then where the charity is a contractor there is absolutely no difference. I would not distinguish in any way, they are all contractors.

  • Can I follow up with you the point I have raised with one or two of the witnesses already, what seems to me to be almost a stand-off position we have reached on some of the issues to do with 35 and 36, which is that when I go through the cases about which you recite in detail in your evidence where the Commissioner has found against the public authority, by and large there is very little material I can see in that which can be damaging to Government, we also have the case where a much higher proportion of FTT cases overturn the Information Commissioner on section 35, 36 issues than for the bulk of their business which suggests something to me about the uncertainty of law. I contrast that with the evidence we had from Lord O’Donnell about the deep uncertainty which was felt in Whitehall about how this was working. The challenge that we have been looking at is: is there any way in which you can reduce that degree of uncertainty whilst leaving, broadly speaking, unchanged the amount of information that would be released as opposed to that which would not be released because it seems to be an unnecessary amount of tension between the two sides of this debate.

  • I picked up that question that you put to other witnesses. When you say the Tribunal overturns the Commissioner, are you using the survey, the analysis that we provided, or are you using your own analysis or the officials’ analysis?

  • We are using our own analysis that we have done, where we get numbers that are — the FTT overturns the Information Commissioner on 35, 36 issues in both directions, it is not saying it is all in favour of the public authority, but it strikes me as being a rather more uncertain territory because the public interest test is probably more difficult in this area.

  • I didn’t find — based on the three years of FTT cases we looked at, we didn’t find that to be the case. We had 26 cases in the three years that we looked at. In 18 cases, the Tribunal agreed with the Commissioner. In two cases the FTT was more open than the Commissioner; it ordered disclosure of more information. In four cases they were more restrictive; in other words they would have satisfied Lord O’Donnell, but in one of those that was the result of the intervention of the Upper Tribunal. So in general, based on that sample, I would not say that the First Tier Tribunal was more likely to overturn the Commissioner in favour of disclosure at all, I think there was quite a high degree of sympathy between the two and if anything, they were more likely to be sympathetic to the local authority.

  • What about the general question about — this charge about uncertainty versus whether there really has been any damage from the release of information? I mean is Whitehall sort of chasing a ghost?

  • Yes. In our submission, we said we think that ministers and senior officials have probably got a distorted view because they are dealing with a distillate of the most difficult and, to them, troublesome cases that come along. I thought Lord O’Donnell perfectly illustrated that last week. When Lord Howard pressed him for an example of the chilling effect, he came up with the meeting between the coalition partners where he was asked is this FOI-able and he said “I cannot guarantee you that it will not be disclosed,“ and so they met without an official present. Three days after that meeting an FOI request was received for the minutes of the meeting and any briefings that officials had produced to inform the meeting, for whatever the subsequent purpose. I should say it took 72 working days for the Cabinet Office to respond to that request, by the way — working days. I invite you to imagine how many working days it took the Cabinet Office to decide it was not in the public interest to disclose it. I think it would have been a matter of seconds, if not minutes, at the outset. That is just by the way. It finally went — and I think it may be worth looking at why it tak