Examination of Witnesses (Questions 340
TUESDAY 29 JUNE 1999
340. Which is the discretionary disclosure clause?
(Ms McKechnie) The point of a Freedom of Information
Act is to remove discretion and to put it in the hands of somebody
who will arbitrate against the different interests. I would not
expect to win every case that my researchers took under the Act.
I would expect to lose some, because the Commissioner, or whoever
would be in charge of making the decision, on some occasions might
decide that the companies had a case that this was private information,
and that may be upheld.
341. I have concluded that we are not going
to get beyond your personal statement today! I am going to ask
Marlene Winfield to add something.
(Ms Winfield) Just on that question, there are two
areas where yes, I think we certainly welcome the fact that the
coverage goes wider, and we refer to that as one of the strengths
in our submission. However, one of the weaknesses that counter-balances
that is that there are very generous provisions on commercial
confidentiality and on information supplied in confidence. All
of these utility companies are going to be able to slap "In
confidence" on anything that they give to a regulator, for
example, and the tests are so generous and they are tests that
are designed to protect information not to make information available
because there are no particular criteria about the terms on which
a public authority, or a regulator, can accept information supplied
in confidence. Because there is not a narrow definition of a trade
secret what is gained by bringing commercial enterprises into
this Bill has a real danger of being lost.
342. Can I just interrupt? We are all perfectly
prepared to hear substantiated criticisms of the Billindeed
we have made them ourselves. But I find great difficulty with
your position on one aspect of the Bill which is recognised as
an advance on the White Paper and which Ms McKechnie has just
welcomed. I think your reading of the Bill is just plain wrong.
You gave an example of Eastern Electricity and its refusal to
divulge how many homes it had forcibly entered. It seems to me
that an individual who wished to have access to that information
would make his or her initial approach to Eastern Electricity.
If they refused to divulge it on the grounds of commercial confidentiality,
it would be open to the individual to appeal to the Commissioner,
who, in my reading of the Bill, would be likely to overrule Eastern
Electricity because this was certainly not an issue of confidentiality.
In other words, I do not think it strengthens your own argument
by taking issue with the very aspects of the Bill which you ought
to be welcoming most.
(Ms Winfield) I think the jury is really out on that
one because what would happen is that Eastern Electricity would
say "This is the harm that would be caused by us disclosing
this information". If the Commissioner did not agree with
the harm then she could say "Right, I do not think that is
substantial enough harm, or it does not meet the test, disclose
it." If, however, the harm had to be balanced against the
public interest, she could not say "You have not given the
correct weight to the public interest, therefore I think it should
be disclosed"; all she could say is "I do not think
you have given correct weight to the public interest, go back
and think about it again".
Mr Bradley: Correct me if I am wrong, but that
is not the case. This example is not caught by Clause 14. It calls
for the direct role of the Commissioner who may according to my
understanding, overrule Eastern Electricity. Perhaps the Home
Office, or our advisers can help.
343. This is an interesting and important matter.
I do not know if the representatives from the Home Office would
like to advise us on this?
(Ms Collins-Rice) This is a question on the commercial
confidentiality exemption. It seems to me that the Commissioner
would have a role in determining whether it was or was not commercially
confidential. If she found that it was not, her ruling would be
that the authority could not rely on the exemption and must disclose
344. That is right. Her decision would be enforceable
by the courts.
(Ms Winfield) If she found that it was but the applicant
argued that there was a greater public interest in disclosing
the information which outweighed the damage that might be caused
to their commercial information, then she would not have the power
to overrule and force them to disclose it in the public interest.
(Ms Collins-Rice) If she finds the exemption made
out then, indeed, the case would have to be considered under Clause
14, where the Commissioner does not, indeed, have powers to make
a disclosure order.
Mr Bradley: I think you are conflating two different
aspects of the Bill, and, frankly, I think it is a rather substantial
misunderstanding of the draft legislation.
345. However, it is a useful example because
it does force us to get to grips, really, with hard cases and
follow the system through. I think even if the jury is only partly
out it is useful to have that exchange.
(Mr Roderick) Could I, perhaps, add specifically on
the public utilities point in respect of environmental information?
Friends of the Earth takes the view that the public utilities
are already caught under the Directive 90/313, and the courts
have held that, for example, the privatised water companies are
emanations of the state and are, therefore, bound by the terms
of the Environmental Information Directive. Where we are pleased
with the Bill is that now it seems that there is going to be a
specific list of the entities that are caught. Of course, the
fact that we have major problems with the detail of the Bill is
a secondary thing, but that is basically, in itself, a good thing,
as far as we are concerned.
346. So I think there is agreement that the
extension of scope, despite your initial remarks, is an area that
does commend itself to you, although with the reservations that
we have entered.
(Mr Roderick) It is not an extension of scope as far
as the Environmental Information Directive is concerned, it is
a concretisation, as it were.
347. I understand. That is not a word we use,
I am afraid, in this Committee. Can I just ask you this: we have
the code at the moment, we have had the question of limitations
of scope and the Ombudsman, but what I would like to get a sense
of is how inadequate the code is as currently used by you and
your organisations? What are its limitations that need to be overcome
for you to do your job?
(Mr Roderick) Can I come in and say that, of course,
we very, very rarely use the code because we have had, as an environmental
organisation, a freedom of environmental legislation for six years.
So we only use the code where we think we do not have a legal
right and we take a very broad view of the Environmental Information
Directive. In the one situation where we have used the code we
were very impressed, and that was actually against MAFF for a
list of BSE incinerators, where they refused to respond to us
and when they did respond they said it was commercial confidential
and the Ombudsman overruled them and I had a personal letter of
apology of Minister. That was duly followed by an amendment to
the Code of Practice to make it very clear that where statutory
rights of access, for example in relation to environmental information,
the Code was not to apply, which I am afraid did dampen our spirits
a little. This is always the problem for us, so we tend not to
use the Code.
(Ms McKechnie) We tend not to use it because of the
if you are doing a research project you need information within
a specific time-scale and spending six months or twelve months
trying to argue with the various ministries to get the information
out is not very useful. I think there is a real prejudice among
my research staff that they will not get the information they
need. We have worked well with the Regulators, and there are lots
of examples where we have worked extremely well with OFTEL. It
was largely as a result of CA's research that OFTEL warned BT
for anti-competitive behaviour (which is a nice way of saying
it had been telling fibs about its competitors, trying to stop
them switching their telephones). We worked extremely well with
the Regulator, and where the Regulators have been willing to give
us information then we have simply wanted raw data. We do not
want analysis, we want the raw data, and we will then line that
up with the research that we are doingwhether we have done
it through mystery shopping, or whatever. My staff do not think
of the Code as a way forward. I think you should not underestimate
the kind of culture change that would be brought about by this
Act. A number of departments, like the Ministry of Agriculture,
in the expectation that they would get an act somewhat more similar
to the White Paper than this, have already started to change the
whole way that they work. For example, in the past where they
have gone out and done their monitoring (I can think of the example
of formula baby milk) they would not actually identify the samples
with particular companies. They are now completely rethinking
how they do that, and I think they have been out to my laboratory
staff to look at our computer system for how we log samples so
that you can absolutely tie up any results with what you put into
the system. Other ministries were beginning to start looking at
the way things would have to change. I think there is a revolution
going on in the public sector in terms of meeting performance
targets and producing this kind of information. I think everybody
was expecting that the Act, if it had been based on the White
Paper, would have given this a push. In fact, if this draft Bill
goes into legislation, largely in its current form, I think you
will cause a reversal. I think we are all going to have to learn
how to live with an open society. Rather, we are not going to
have to learn, if this Bill is what goes through. It is not something
that researchers instinctively go to"Ah, the Code"because
it has not been regarded as effective.
348. I am perplexed about this because we had
an investigative journalist, David Hencke, from The Guardian,
telling us, just before lunch that he found the Code effective
to use in many departments. There may be problems when you get
to the centre, but across departments, including MAFF, it was
extremely useful to employ the Code in unearthing information.
I cannot quite see why you, as a major consumer organisation,
in the business of finding out consumer information, have not
been using the Code.
(Ms McKechnie) Because people give up. For example,
in the course of the BSE affair, once it was known that there
was a human link, we tried to get this information about the stuff
that is used to wrap medicines in (I have forgotten what it is
called) and was it coming from beef derivatives? If so, what products
were affected. We were denied access. We were told this was commercially
confidential; we could not have the names of the products that
could be affected.
349. Did you appeal to the Ombudsman?
(Ms McKechnie) I think we did in that case, but I
will go back and check.
350. I just want to follow up on commercial
confidentiality. It was really in the context of Clause 34 and
the entering of people's houses by a public body for disconnections,
or whatever. I was reading Clause 34 and I wonder if it is not
caught, in fact, despite what is said, by 34(2) "Information
is exempt information if its disclosure under this Act would or
would be likely to prejudice the commercial interests of any person,
including a public authority, holding it". I think I am quoting
the right section there. In that instance, of course, I am just
trying to follow it through to try and test the proposition put
in front of us. Of course, this information could reveal that
20 per cent, let us say, of consumers are in the situation where
the authority concerned is making these entries into houses. That,
in fact, is market sensitive information, one could argue, and,
therefore, could affect the share price of these companies. I
can see almost everything. This is so elastic, is how I read it
and I guess that is really what you are saying. It is so elastic
that, in fact, Mr Bradley's interpretation is an extraordinarily
generous one. Is it not true that in the evaluation of the work
that you have all done, in one way or another, this concept of
commercial confidentiality almost bedevils an examination of corporate
bodies that perform public functions? I am also thinking how this
touches into central government. We had, and it has now been criticised
by the Comptroller and the Auditor General, the sale of Army houses,
if you remember. No information could be provided to Parliament
as to what was, essentially, a public auction, no less, on the
basis of commercial confidentiality. Where it affects the public
interest, is there not a overriding balancing factor of public
interest, whether in ownership or statutory duties, that does
actually require revealing that information which you seek and
is not blocked by 34(2)? It goes on to say, in (3) "In relation
to information which is exempt information by virtue of subsection
(1) or (2)" (and I am quoting (2)) "the duty to confirm
or deny does not arise if, or to the extent that, compliance with
Section 8(1)(a) would or would be likely to prejudice the interests
mentioned in subsection (2)". Does that not squeeze away
the access to the information?
(Ms Winfield) It would catch anything that might be
vaguely bad news about a commercial enterprise which might affect
people's willingness to use it. It is a catch-all. In the fuel
disconnection example, there could be a public interest. Suppose
that a particular fuel company was letting debts get very out
of hand before they did something about them, and because of their
procedures people were being forced to live without essential
gas or electricity. There would be a public interest in knowing
exactly how they make decisions and what they do in relation to
disconnections which could very well, from public safety grounds,
override the damage that would be done to their commercial interests.
Yet I am very sceptical that, as written, the Bill would allow
that to happen.
351. I think my questions are largely addressed
to you because my primary interest is how people who are least
able to use most of our systems are able to access the rights
that may be afforded them, no matter what your perception of how
wide or limited that may be. The fact that many organisations
clearly do not use the Code underlines the fact that it probably
means that in a lot of cases people do not use the Code because
they can get access to information anyway, and one of the concerns
that has been raised with us (I think it is in some evidence that
Clifford Chance has given us) is that there may be a fear that
public authorities will treat all requests for information as
falling within Clause 8 and, therefore, that could restrict the
information which may be widely obtainable now. What is your view
on that? How could we prevent that from happening?
(Ms Winfield) I think it goes back to something that
the civil servants you were seeing last week said, that in the
end it will all be down to how individual Ministers interpret
this Act. Therefore, it is extremely important that the message
that the Act sends to every department is not "Fight till
the last minute using every available clause and provision in
this Act to not give away information". I think the answer
to your question is that it is going to depend very much on the
culture that is created by this, and this is where we have grave
concerns. If you compare it with the Open Government Code, it
starts by saying "The purpose of this Code is to make as
much information available as possible to the public". When
it starts talking about exemptions, every time it mentions exemptions,
it says "But, of course, there is a public interest override".
That tone is completely absent from this Bill. You do not even
get to public interest until about Clause 6; it mentions you have
to have regard to public interest but you do not actually, properly,
get to the public interest until Clause 14, and then it is a discretion.
It sends the wrong message. Then you have all of these blanket
provisions, like the Kafka clause, like "information may
be published at some unspecified time in the future". You
have all these things which together send the message that we
are going back, we are pulling back from a culture of openness
to a culture of secrecy. That is going to affect the way that
message filters down from the minister to the civil servants making
those decisionsthe sphere in which they are to make those
decisions. That is what concerns us.
352. Can I follow that up because I am trying
to get to the practicality of this, in terms of how the Bill could
be improved, since we have a draft Bill, rather than a blanket
condemnation. Publication schemes are something which, I think,
we would welcome because that is new that does not exist at the
moment. There are, of course, some concerns about the limits that
the Information Commissioner has in relation to publication schemes.
This is absolutely vitally important in terms of people knowing
what to look for. Can you give us some idea as to how you would
see the publication scheme being improved from what is currently
in the Bill?
(Ms Winfield) First of all, you have advice to have
regard to public interest, or you have a duty to have a publication
scheme that meets the criteria set out in a code, and that codes
needs to be very carefully drawn so that it makes the priority
to give anyone who wants to know about what information a public
authority holds and is available an easy, user-friendly way of
finding out what information is held that is disclosable. The
Campaign for Freedom of Information has produced very good guidance
on what a publication scheme should contain, and I hope that will
be incorporated into the Code of Practice. They make a lot of
recommendations about what a publication scheme should do. Again,
it does come down, in the end, to the sphere in which all of this
(Ms McKechnie) Could I just say that I think the question
is a very valid one, but I do think if this Bill passes into legislation
in its current form then it will be in the interests of any organisation
that does not wish to disclose to put it through the route of
the Bill. I think that is a perfectly valid point to make.
353. I have a couple of questions for each of
you, and then two for Sheila. Firstly, to go back to the commercial
confidentiality, in the United States when there was a very narrow
definition a number of companies took the Government there to
court and ended up with a reverse agreement provision. You did
not really address that in your comments, but do you see a need
for such a thing?
(Ms Winfield) Yes, we think the reverse FOI provision
is absolutely fair and absolutely necessary, and that it is a
trade-off. You have a narrow definition for trade secrets, you
have very rigorous criteria about what constitutes commercially
sensitive information and you have reverse FOI so that people
can make representations. Also, we think that when the information
is supplied by the commercial enterprise they ought to say at
the time they are supplying it "We think this is commercial
information, if it were revealed this is the harm we think would
be caused:". That should not bind a public authority to uphold
that without question, but it should put the authority on notice
that the body supplying it considers that harm will be caused,
and, therefore, they must be able to access the reverse FOI rights.
354. A number of your comments were very critical
of the Information Commissioner. Would you consider that her powers
would be increased if she had a specific duty to take public interest
(Ms Winfield) Yes. I would say not critical of the
Information Commissioner, because we think she is doing a very
good job, but critical of the post as conceived. We think this
would be a substantial improvement to the Bill if she were able
to exercise a public interest override.
355. Just continuing that, do you have wider
concerns about the attempt to integrate the privacy regimes with
the FOI regimes in the Bill? Do you think that integration suggests
that the balance will be got right, or do you think there are
problems associated with it?
(Ms Winfield) The other side of the Data Protection
Registrar's role is to give people access to their personal information.
So, at the moment, she has not only a protecting privacy role,
she also has an access role. We were happy to see the regimes
brought into alignment because one of our criticisms of the White
Paper was there was a grey area and when applicants found themselves
in a grey area the White Paper suggested they should be told there
was a conflict, and that was obviously not good enough.
356. So this is another advance on the White
(Ms Winfield) We have given you a whole list of advances
on the White Paper in our evidence.
357. You started off denouncing it and now we
have got quite a list of things you like about it.
(Ms Winfield) We have given you a list. It is on the
Chairman: I think we are teasing each other.
358. I have a couple of questions for Sheila.
What kind of organisations do you think that freedom of information
should apply toslightly outside of central government?
(Ms McKechnie) Any organisation that is going to be
providing, in some way, a public service.
I could come back and give you a kind of definition
359. So an organisation like the National House
(Ms McKechnie) Yes, and anybody that is operating
under some kind of quasi-legal, government function. We have got
a number of different structures for setting up arm's length agencies,
and we have a whole range of different names, but it would be
possible to get a definition that encompassed all of those regimes.
2 Note by witness: Please see additional statement
in covering letter which we hope will clarify our reservation
about the Code. Back
Note by witness: In the main, we supported the scope as
set out in the White Paper (2.1-2.2, pp.4 and 5), with some additions
for statutory substitute bodies. See Appendix, p. 84. Back