Justice Committee hears from Information Commissioner on Government’s FOI proposals

On 5 February 2013, the Justice Committee held a one-off evidence session on the work of the Information Commissioner’s Office. The session provided an opportunity for the Committee to hear the ICO’s views on the Government’s proposals to make it easier for authorities to FOI refuse requests on costs grounds and revise its policy on use of the ministerial veto.

Q25 Mr Llwyd: Can I ask you about the use of ministerial vetoes, which is again a very important point?…Is it the case in fact that the Government do not seem to be following their own statement of policy or that that statement of policy is actually wrong?

Christopher Graham: I reported to this Committee on 3 September about the ministerial veto activated by the Attorney-General on 31 July in relation to the Iraq minutes…

I was very struck by the Attorney-General scattering the “E” word around—there were a lot of instances of “exception” and “exceptionally” in the notice supporting the certificate. That seems to me to conflict with what was said in Parliament at the time that the law was passed, which was: “The Government considers that the veto should only be used in exceptional circumstances and only following a collective decision of the Cabinet. This policy is in line with the commitment made by the previous administration during the passage of the Freedom of Information Bill that the veto power would only be used in exceptional circumstances, and only then following collective Cabinet agreement.”…

I understood that the veto would be invoked very rarely and I do not think that the Commissioner or the tribunal is suddenly scattering unacceptable decision notices around…

Q26 Mr Llwyd: Following on from that point, my understanding is that the Government will now be reviewing and revising their policy on the veto, including in fact its application in cases which do not involve Cabinet-related information. First, how do you think it should be revised? Secondly, will you be in a position to inform that particular discussion?

Graham Smith: Perhaps that initial reaction suggests that we are not involved at the moment in that particular discussion. There is no legal requirement on the Government to have a veto policy here. They decided themselves that they would have a policy on the exercise of the veto, and I think now they are trying to extricate themselves from having their hands tied by the policy that they came up with, which, as I think you say, was in the context of Cabinet material being envisaged as what would most likely be the subject of the veto. I should say that it was the previous Government we are talking about there.

We have now had two cases—one involving the NHS risk register on the proposed reforms there, and the other one more recently on the Prince of Wales’ correspondence— which do not involve Cabinet discussion. My understanding is that the Government are looking for a policy which can be applied in a wider set of circumstances than perhaps had been originally envisaged.

Q29 Rehman Chishti: I have a few questions in relation to costs of compliance. First, what is your view of the Government’s proposals, in their response to our report on post-legislative scrutiny of the Freedom of Information Act, to reduce the costs to public authorities of compliance with freedom of information legislation?

Graham Smith: We are talking here about the proposals for the cost limit, which threatens to remove from the ambit of the Freedom of Information Act considerable numbers of requests, irrespective of their public interest merit. That is very concerning. The Committee, I think, rightly recognising that there were genuine issues of burden, suggested that it might be appropriate to reduce the cost limit marginally, and I think you suggested two hours of search and retrieval time. But the Government’s response said that that is so marginal that it would not have any significant effect. They are also looking at including in the activities that can be taken into account when calculating the cost limit the consideration of the information against the exemptions in the Freedom of Information Act. That is the thing that I think threatens to remove a lot of requests from the ambit of freedom of information.

If the cost limit was both reduced in terms of the actual amount that we are talking about and the amount of time that we are talking about, and these additional activities could be taken into account when calculating the cost limit, then we really would be talking about a significant number of cases being potentially removed from the ambit of freedom of information. But we do not have detail of the Government’s proposals yet. We have not seen any. We have not been asked to comment on or discuss any potential formulae that they might come up with. So at the moment we are just feeling somewhat trepidatious about the situation.

Q32 Rehman Chishti: I am grateful for that because you obviously have more information at your fingertips than I have over here. If I may move on to my supplementary, do you accept that there is a phenomenon of “industrial” use of the Act, which is proving overly burdensome to public authorities—perhaps local authorities in particular?

Graham Smith: We recognise that there are some users of the Act who use the rights on a large scale. On occasions, that can be regarded as abuse. We discussed the provisions under the Act for vexatious requests at some length in the post-legislative scrutiny sessions before this Committee. There has just been a very useful and important upper tribunal decision on vexatiousness in this context, which again was released last week, and that will help public authorities and the Commissioner in the application of those provisions.

Where I would disagree with the impression I was getting from some of the Committee’s deliberation is that this “industrial” use is, if you like, ascribed to some journalists, who, in my experience, are on the whole using the Act very effectively. It has to be said that it is through journalists that a number of very important pieces of information in the public interest have been disclosed under the FOI Act which otherwise would have been kept secret, and we have been talking about some of them today in the course of the discussions…

Q33 Rehman Chishti: Sure. I have a final supplementary, if I may. Should fees be charged to requesters who take cases to information tribunals?

Graham Smith: That is very difficult. It would very much change the scheme as it has been introduced…What is relevant is that we have seen, in the last couple of years in particular, much more efficient use by the tribunal of its case management powers so that cases that have no reasonable prospect of success can be the subject of a strike-out application, and we make those applications. The tribunal judges are much more willing to consider those cases very seriously. Whereas in the previous business year we saw about 15% of tribunal appeals being struck out right at the very early stage, so far this year that is running at about 20%. So I think the tribunals themselves are aware of the need to be more efficient and more cost-effective. My own view is that a gateway fee is perhaps a rather blunt instrument in those circumstances, although I can see the attraction in pure cost-saving terms because it would no doubt reduce the number of appeals. Again, it would be arbitrary because it does not necessarily mean that the appeals that are deterred are those without merit, whereas the current strike-out arrangement does address that issue.

The Commissioner was also asked a broader question about public authorities’ compliance with Act. In response he told the Committee that the squeeze on his funding could mean the backlog in FOI casework returning:

Q34 Graham Stringer: Can you give us a broad-brush view of the problems, as you perceive them, of getting public bodies to comply with the freedom of information, both in the spirit of the Act and the detail of the Act?

Christopher Graham: We have had considerable success as the Act has settled down in recent years by being quite aggressive about those local authorities that do not comply in a timely way. We have a programme of monitoring. At the moment, we have just four public authorities who are being watched over the first quarter of the year. One of them is the Department for Education. In recent years the list has been much longer than that. As the ICO itself has speeded up its consideration of appeals, that, as we intended, has had a salutary effect on the rest of the public service, and other people have got on with it because they realise that the Information Commissioner will not take years to get on to their case. The whole thing has speeded up very satisfactorily….

Q35 Graham Stringer: Would it be fair to say, going back to your previous answer, that things are improving, but they would improve more quickly if you were able to audit public bodies?

Christopher Graham: Certainly, because we would concentrate our efforts on those organisations. Wirral borough council is on the watch list at the moment. I would really like to send in a good practice squad to Wirral borough council, but I do not have the powers do that. I am not picking on Wirral; it is just an example that comes to mind.

Graham Smith: We came forward with a proposal that, if there were statutory time limits, that would put in more of a kind of framework and help to prevent some of the undesirable practices that we see on some occasions, when either the response to a request is spun out on public interest grounds—they take too long under a public interest test extension—or, without a statutory time limit on an internal review, those can take months and months. There is no obligation to give reasons for exercising a public interest test extension or for how long it takes for an internal review. Again, we can do something about it if the complainant comes to us, but, quite often, they do not come until they ultimately get their response and then we find that it has taken six months. Then we can do something about it by way of a practice recommendation.

Certainly for some public authorities, who do not come to the table with a willingness to comply either with freedom of information requests generally or with specific freedom of information requests which they find, say, politically inconvenient or unhelpful, it gives them the opportunity to kick them into the long grass. We do see evidence of that. Our powers to do something about it are limited, and I think the Act would be stronger if there were statutory time limits. A code of practice is fine, but, by definition, it is a code of practice. While we can take action by way of a practice recommendation for frequent breaches of a code of practice that we have evidence of, it is not the same as an enforcement notice power or a decision notice power where there has been a clear infraction of the Act itself.

Christopher Graham: I noticed in the Westminster Hall debate the other day that the suggestion was made that it takes one to two years or more to get a response. I was not clear whether that was referring to internal reviews, but certainly it does not refer to the Information Commissioner’s Office. Whatever may have happened a long time ago, we are now turning round appeals under the Freedom of Information Act very quickly. I have a couple of troublesome cases that have been with us for months and months, but in 90% of the cases requests are dealt with very promptly.

We do not have a backlog, but I will, if I may, take the opportunity to tell the Committee that the squeeze on grant-in-aid money for freedom of information has been relentless. I said in my memorandum—when I came before you four years ago for approbation or otherwise—that I had resisted the temptation from one of the members of the Committee to say I would only take the job if there were adequate resources for freedom of information. I said, “No, I want to go and have a look.” We have made considerable changes and we have speeded up, but we are now getting to the point where the squeeze on the grant-in-aid is such that I have to hold posts open and am just beginning to see the threat of a backlog returning if we are not careful. We are determined to manage things to make sure that that does not happen, but we are beginning to run out of road because I can only spend grant-in-aid money on freedom of information. I cannot subsidise freedom of information work from the data protection side of the house. It is a very funny way to run a £20 million-organisation. I am cash rich on the data protection side but very cash poor on the freedom of information side.

That has a bad effect. Despite the heroic efforts of my staff, it is beginning to get very difficult, and yet the demand for our services is increasing all the time. The increase in the FOI appeals caseload is 5% up this year to date, in January, it is up in data protection by 7.3%, and it is up on PECR, which is the nuisance text messages, nearly 9%. So we are very busy, but we have this crazy funding system where to save £1 of freedom of information money, which the Ministry of Justice wants me to do, I also have to save £4 of data protection money because of the gearing, when I could well do with spending that.

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