The Campaign has made representations on the two-stage appeal process to both the DTI and MOD, and we understand that the DTI has now revised its procedures and adopted a single stage appeal. However, even a single stage review which extends over 63 working days - as in the above mentioned case - is excessive.

The most elaborate multi-stage appeals procedure has been introduced by the Northern Ireland Office, whose procedures may involve as many as four separate stages of internal appeal. The NIO's Environment Department's procedural note states:

"The formal procedure for internal review of appeals against disclosure of information is as follows. Initial appeal will be to the Grade 7 in charge of the Branch which dealt with the request. Heads of Division may wish to review the decision to deny access to the information at this stage in conjunction with the Central Management Branch, or as necessary with the Departmental Solicitor. If not satisfied with this review, the applicant will be entitled to ask the Under Secretary with lead policy responsibility to review further the decision to refuse access. If the applicant is still not satisfied the Permanent Secretary may be asked to arbitrate and in extremis the case may be referred to the Minister. If the applicant is still not satisfied the Ombudsman may be involved in the reviewing the Department's decision."

These procedures are no doubt intended to give applicants the maximum opportunity to challenge decisions. In practice they represent an endless series of internal reviews, each of which must be completed before the applicant may approach an MP with a complaint for forwarding to the Ombudsman. We doubt whether anyone would ever succeed in taking a complaint to the Ombudsman under such conditions.

Such excessive bureaucratic requirements tend to contradict the government's assertion that the code is more informal and less bureaucratic than freedom of information legislation.

Nothing in the 'Open Government' white paper, the code itself or the Cabinet Office guidance on the code suggested that the government envisaged anything other than a single stage of internal appeal. We suggest that internal appeal should be limited to a single stage.

Internal review may be useful to departments, since it offers them the opportunity to correct a mistaken decision without the inconvenience of an external investigation. However, to the applicant internal review may be useful only if the department deals with it more speedily than the Ombudsman, and therefore offers the prospect of obtaining satisfaction more quickly than by complaining to the Ombudsman.

If departments take almost as long to deal with internal review as the Ombudsman would take to deal with a formal complaint then there is no value to the applicant in this procedure. The applicant's interests would be better served by a right to complain directly to the Ombudsman in the first place.

The precedent for this system of internal review appears to be the Australian Freedom of Information (FOI) Act. However, internal review is not a feature of all countries' FOI legislation. It is not required under the Canadian act where applicants can approach the Information Commissioner directly, nor in the New Zealand legislation where the Ombudsman can be approached directly. These countries' FOI laws appear to provide a more user friendly right of access than the code of practice.

In Australia, under section 55(2) of the FOI Act, applicants can complain to the Administrative Appeals Tribunal, which enforces the legislation, but must first have applied for internal review. However, they are not obliged to wait indefinitely for the review's completion. If the review has not been dealt with within 14 days, the applicant is then free to complain to the tribunal.

We believe a similar provision, with a fixed time period, should be adopted under the code. This would allow departments the opportunity to avoid an external investigation provided they acted reasonably quickly, while offering applicants the opportunity to go directly to the Ombudsman if the process of internal review had not been completed within a set period.

The "MP filter"

Given the potential obstacle of internal review, the fact that applicants cannot complain directly to the Ombudsman but must ask an MP to forward their complaints, adds a further complication to the complaints procedure.

The "MP filter" may not be a problem for organisations and individuals who are already in contact, and enjoy reasonable relations, with their own (or another) MP. It may well be an obstacle for others, who may find the prospect of approaching an MP intimidating and a further source of delay.

We appreciate that the committee has recently concluded that the MP filter should be retained, and helps to keep MPs in touch with problems affecting their constituencies. However, we wonder whether the balance of argument is the same for open government complaints as for maladministration. Only people who have personally suffered injustice can complain about maladministration; such a complaint almost by definition will relate to the personal circumstances of a constituent, which presumably may sometimes reflect the problems of other similarly placed constituents. However, open government requests, need not refer to the applicant's personal circumstances at all. They may be prompted by wider concerns - the government's approach to the European Union, for example - which have no particular local implications. We would prefer it to be left to individuals to decide whether or not to seek an MP's help in obtaining the information, and allow them to approach the Ombudsman directly if they wish.

Fees

Most of the requests which the Campaign itself has made under the code have been dealt with free of charge. However, departments' published fee schedules permit what we would regard as potentially prohibitive fees to be charged; and we are aware of examples of such charges being made.

In November 1994, the Campaign published a survey of departments' charging policies. A copy of the survey with the accompanying press release is attached.

We reported that three departments (MAFF, Inland Revenue and the Foreign & Commonwealth Office) charge most applicants a basic fee of £15, which is non-returnable even if no information is supplied. Additional hourly charges may be made if the request is complex.

Such fees, charged even for simple requests, are not in our opinion compatible with a disclosure scheme whose stated aim is to open up the Whitehall culture. Far from doing so, these application fees suggest that requests for information are regarded as a costly inconvenience.

They may also be a practical deterrent to users. It is significant that 9 out of the 90 requests made to the Inland Revenue in 1994 were withdrawn after applicants were notified of the fees [OPSS, 1994 report, page 18, footnote 22].

Under the OPSS guidance, fees should not be charged for information which was previously available without charge or for information falling within a limited number of classes. Both MAFF and the Inland Revenue point this out in their leaflets. However the Foreign Office leaflet fails to do so, implying that every formal request under the code attracts a fee.

The Campaign itself was asked to pay £15 by the FCO for seeking information which, under the code, should have been provided free of charge. The fee request was withdrawn, when the Campaign pointed out the mistake. Other users, less familiar with the code, may be unlikely to challenge such charges. In our view the exceptions to the charging policy should be acknowledged in the Foreign Office's own publicity.

Most departments allow some free time before charges are made. The amount varies from as little as one hour to as much as five hours, depending on the department.

Moreover, after the free time has expired some departments charge only for any subsequent staff time. Others charge for all the time spent, including the initial hours. The DTI and Welsh Office waive fees below £100, but charge the full costs - including the first £100 - if a request is costed at over £100.

This means that a request to the DTI involving three hours of senior staff's time would be free: but if the request took four hours, the charge would be £136. (If less senior staff are involved, the first 7 hours would be free but the 8th hour would cost £112.)

Departments may feel that fees are necessary because they fear they may otherwise face potentially limitless demand for information. However, the danger at present is precisely the opposite: that the code will be barely be used at all. Moreover, the code itself provides multiple safeguards against unreasonably burdensome demands. Exemption 9 permits requests to be refused where they are:

"vexatious or manifestly unreasonable or are formulated in too general a manner, or which (because of the amount of information to be processed or the need to retrieve information from files not in current use) would require unreasonable diversion of resources."

Using fees to control demand in practice favours commercial organisations, who generally can afford to pay. The Campaign's press release on fees cited examples of charges of hundreds or even thousands of pounds. These would clearly put information beyond the reach of the wider public and most voluntary organisations.

[Note: the Campaign's press release also referred to the fees of £50 and £100 a page charged in certain circumstances by the National Rivers Authority. We understand that the NRA has subsequently revised its charging schemes, so the fees referred to in the press release may no longer be current.]

We are aware of one request, from the Shetland-based Northern European Nuclear Information Group (NENIG) which asked the DTI a series of detailed questions about nuclear fuel reprocessing at Dounreay. The department asked for an advance payment of £325, which the group paid - a substantial investment for a small organisation. Despite repeated reminders, no information was supplied for 3 months. NENIG say they were told at various times that their request was with the department's lawyers and, later, with the minister. When an answer was finally provided, it consisted of just two and a half pages, with none of the actual documentation the group had requested. NENIG maintain that two thirds of this was already public knowledge. They estimate that this information has cost them more than £5 a line. The department's internal review upheld the limited disclosure and the charges, and suggested that in fact the costs to the department were much greater than those charges. NENIG were so dismayed at this response that they initially decided to abandon the matter altogether. However, they have since taken the issue to the Ombudsman.

There is also considerable discrepancy between departments' charging policies. The most generous, relatively, appear to be the Lord Chancellor's Department, the Public Records Office and parts of the Northern Ireland Office which allow five hours free work, and then charge only for any additional time; and the Cabinet Office, the Department of National Heritage and the Scottish Office, which waive the first £100 of all fees. At a minimum we would wish to see all departments bring their charges into line with these. However, we would also like to see fees being waived altogether where disclosures are in the public interest.

The OPSS guidance on the code does provide for fees to be waived, but only in limited circumstances, where disclosure is necessary for the "fair and accountable" performance of a department's functions.

This potentially broad term is given an unreasonably narrow meaning by the guidance, which appears to limit it to Citizen's Charter information such as details of benefits, service standards and appeal rights:

"Departments should not charge for the provision of information which it is necessary for the public to have as part of fair and accountable performance of their functions. Information explaining:

benefits, grants, rights and entitlements;

the standards, and availability of services;

the reasons for administrative decisions made in the applicant's case;

the ways in which the citizen may exercise rights to appeal or complain about a decision;

regulatory requirements affecting affairs of a business, or common interests;

the main points of existing departmental policies or initiatives;

should usually be available free of charge." [Guidance, Part 1, paragraph 71]

We believe that a much broader concept of accountability is called for in this context, and that fees should be waived where there is a public interest in the disclosure of the information.

A basis for this may derived from the code's aims, one of which is:

"to improve policy-making and the democratic process" [paragraph 2].

Referring to this passage, the OPSS guidance adds:

"The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate, or improve the transparency and accountability of a particular function of Government" [Part I, paragraph 3]

We think the code should provide for fees to be waived where such a public interest exists, while continuing to permit fees to be charged to commercial organisations or for requests not meeting this test (or not involving personal files). In broad terms this is what is done under the US Freedom of Information Act.

Jurisdiction

The code applies only to those bodies within the Parliamentary Ombudsman's jurisdiction. While this includes virtually all government departments and many of the more important central government bodies, there are many important omissions.

The Ombudsman has recently referred to the "large number of public bodies" not subject to the code [HC 91, paragraph 13]. It is unlikely that anyone devising an open government scheme from first principles would exclude from its scope bodies such as the police and police authorities, the nationalised industries, the Atomic Energy Authority, the Monopolies and Mergers Commission, the Civil Aviation Authority, the Crown Prosecution Service, the Bank of England, the National Curriculum Council, the Broadcasting Standards Council. Training and Enterprise Councils and many others.

In addition, there are is a substantial list of matters, described in Schedule 3 to the Parliamentary Commissioner Act 1967, which the Ombudsman is prohibited from investigating. It is not clear whether these restrictions will also prevent the investigation of complaints about the withholding of related information. If this proves to be the case, a number of extremely important additional areas will be excluded from the code's scope.

The proposed NHS code

The Parliamentary Ombudsman cannot investigate open government complaints relating to NHS bodies, such as trusts and health authorities, but such bodies are to be subject to a separate NHS code, supervised by the Health Service Ombudsman. A draft NHS code has been issued for consultation, and we have been particularly critical of its proposals. A copy of our response to the Department of Health is attached.

In our view, the draft NHS code is markedly inferior to the existing central government code. In particular:

• the central government code applies retrospectively, whereas the NHS proposals would only apply to information collected after the code comes into force

• most of the central government code exemptions contain tests of harm; these have been omitted from many of the corresponding draft NHS exemptions. Thus, while the central code exempts information whose disclosure would "prejudice... commercial or contractual activities" the NHS proposals omit the word "prejudice" and exempt all information about commercial or contractual activities, even if disclosure would cause no harm. This appears to exclude the basis of the internal NHS market reforms from the scope of the code. Other exemptions in the NHS proposals have been similarly broadened.

• the central government code contains a valuable provision, allowing the Ombudsman to rule that even exempt information should be disclosed where there is an overriding public interest in openness. This has been omitted from the NHS proposals.

Ironically, while trusts and health authorities would be subject to this inferior code, the Department of Health itself is subject to the central government code. This means that NHS bodies would be entitled to withhold information which, if held by the department, would have to be disclosed.

Sometimes, information on a single issue will be divided between NHS bodies and the department, with some information held centrally and other held locally. An applicant may apply to both for the information, but be treated under two separate and inconsistent codes.

Any complaints about non-disclosure will be divided between the Parliamentary Ombudsman and the Health Service Ombudsman - but both posts are currently held by Mr William Reid. As a result, he could find himself recommending disclosure of the information held by the Department of Health but unable to recommend disclosure of equivalent information held by the NHS body. This may lead to inconsistent decisions for which no intelligent rationale can be offered, placing the Ombudsman himself in a quite unreasonable position. We believe the answer is to bring the NHS code, which has not yet been issued in final form, into line with the provisions of the central government code.

Statutory secrecy provisions

Because the code has no statutory basis, it cannot override the many statutory restrictions on disclosure contained in legislation. The Open Government white paper identified some 400 of these. Many are unobjectionable and protect the privacy of individuals. Others prohibit the disclosure of all information obtained under particular powers, regardless of whether, for example, personal privacy or trade secrets are involved. One instance is section 118 of the Medicines Act 1968, which prevents the medicines licensing authority from revealing information about the safety of pharmaceuticals which it has received from manufacturers.

In 1992 the government began a review of these provisions, and committed itself to amending or repealing those that were excessive. Having completed the review, it appears to have concluded that the exercise was too complex, and the benefits too uncertain, to be worthwhile. Instead it has resolved that any future statutory restrictions must be more narrowly drafted. Existing statutory restrictions therefore remain in place, and access requests under the code will not be capable of securing information to which they apply.

Enforcement

Although so far only a small number of cases have been dealt with by the Ombudsman, these indicate that he is taking a tough line with departments over the code. The systematic way in which the Ombudsman's interpretation of the code's exemptions are being published is also welcome, and suggests that an important body of precedents will gradually become available.

However, the most obvious question about a non-statutory code is whether it will be complied with.

We accept that departments will come under considerable pressure to comply with the Ombudsman's recommendations and will wish to avoid the public criticism which failure to do so may involve. However, we are not convinced that such pressures will always be sufficient.

Before the code's introduction Mr Waldegrave cited the Ombudsman's record of securing compliance over the last 25 years. At a seminar in October 1993 he asked:

"Where are the examples of a finding on maladministration or recommendations for compensation being ignored? The Ombudsman's analysis has sometimes been disputed, but recommended remedies have not been held back".

Yet only in the last few weeks, such examples have occurred. The Permanent Secretary at the Department of Social Security recently turned down the Ombudsman's suggestion that compensation be paid to a man for the distress and anxiety caused to him and his wife after he had been wrongly accused of fathering another woman's child by the Child Support Agency [HC 135, January 1995]. Last month, the Permanent Secretary at the Department of Transport rejected the Ombudsman's findings of maladministration over its failure to compensate householders whose property had been blighted by the Channel Tunnel Rail Link [HC 193].

It is therefore entirely possible that the government may reject some of the Ombudsman's disclosure recommendations.

We have argued that the open government code in fact provides greater potential for conflict between the Ombudsman and government than conventional maladministration cases. This is partly because applicants do not have to show that they have personally suffered injustice before making a complaint under the code. This opens the door to a much wider range of complainants than arise in conventional maladministration issues. Information may be sought by people actively participating in discussion of, or challenging the government over, policy matters. Complaints to the Ombudsman may be more likely to involve matters of current public interest or contention.

Moreover, the code contains a large number of so far untested concepts, for which there no equivalent to the body of maladministration "case law" now built up over nearly 30 years. There is considerable scope for disagreement over the interpretation of many exemptions, particularly where they refer to the potential harm to, say, defence, or to the candour of internal discussion. Finally, if a department is pressed for information on an issue on which it feels vulnerable, and where disclosure might highlight embarrassing flaws in a policy, it may resist disclosure in order to save face.

The government suggests that, should an Ombudsman recommendation be ignored, the remedy would be for him to make a report to Parliament which might then taken up by this committee. The prospect of an investigation by the committee may make the government more reluctant than it would otherwise be to reject a recommendation, and we recognise that the committee has warned departments to expect a grilling if they do reject a recommendation [HC 33, paragraph 88]. Departments will clearly anticipate this prospect before deciding not to accept the Ombudsman's findings. But if they do decide to reject a recommendation, they will presumably have foreseen, and decided to resist, any additional pressure from the committee.

Clearly, it will be easier for the government to resist the recommendation of a select committee than to defy the order of a court or tribunal. This is of course the case for a statutory right of access. Under the Right to Know Bill, introduced in the Commons in 1993, enforcement would have been in the hands of an Information Commissioner whose rulings would be legally binding, subject to a right of appeal to an Information Tribunal. The arrangement was designed to keep disputes out of the courts, with all the costs that they involve, while retaining an enforceable obligation. Failure to comply with an order of the Commissioner or Tribunal would have been treated as contempt of court.

We do not deny the potential usefulness of the code. It is a step in the right direction, but it suffers from a number of substantial defects. We continue to believe that legislation covering the whole public sector, providing access to documents not information, and an accessible and enforceable right, remains necessary.

	Information that even the Ombudsman could not see.
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