Select Committee on Public Administration Minutes of Evidence


Examination of Witnesses (Questions 340 - 359)

TUESDAY 29 JUNE 1999

MR PETER RODERICK, MS MARLENE WINFIELD AND MS SHEILA MCKECHNIE

Chairman

  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.

Mr Bradley

  342. Can I just interrupt? We are all perfectly prepared to hear substantiated criticisms of the Bill—indeed 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.

Chairman

  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 the information.

Mr Bradley

  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.

Chairman

  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 sheer practicality;[2] 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 doing—whether 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.

Mr Shepherd

  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.

Ms Moran

  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 decisions—the 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 happens.
  (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.

Mr White

  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 into account?
  (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.

Chairman

  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 Paper?
  (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 record there.

  Chairman: I think we are teasing each other.

Mr White

  358. I have a couple of questions for Sheila. What kind of organisations do you think that freedom of information should apply to—slightly outside of central government?
  (Ms McKechnie) Any organisation that is going to be providing, in some way, a public service.[3] I could come back and give you a kind of definition—

  359. So an organisation like the National House Builders' Council?
  (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

3   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


 
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