House of COMMONS
MINUTES OF EVIDENCE
CONSTITUTIONAL AFFAIRS COMMITTEE
Tuesday 14 March 2006
RICHARD THOMAS, GRAHAM SMITH and JANE DURKIN
USE OF THE TRANSCRIPT
Taken before the Constitutional Affairs Committee
on Tuesday 14 March 2006
Mr Alan Beith, in the Chair
Mr Andrew Tyrie
Witnesses: Richard Thomas, Information Commissioner, Graham Smith, Deputy Commissioner and Jane Durkin, Casework and Advice Division, gave evidence.
Q1 Chairman: Mr Thomas, Mr Smith, Ms Durkin, welcome. We are glad to see you back. Mr Thomas, I think you anticipated you would be back in front of us when we discussed what it was all going to be like before the legislation came into force, and we have now reached the point when we are looking at what has happened in the first year. I will ask Ms Morden to start.
Richard Thomas: Indeed.
Q2 Jessica Morden: What lessons have you learnt from your first year of implementation?
Richard Thomas: Thank you Ms Morden, thank you Chairman. We are pleased to be here before you again this afternoon. May I introduce my Deputy, Graham Smith, and my Assistant Commissioner Jane Durkin. I think a mixed message comes out of the first year. I would want to communicate to the Committee that FOI is working. The Freedom of Information Act really has made a significant impact across the whole of the public sector. There is little doubt in our minds that most public authorities are taking the issue very seriously and the majority do seem to be coping. We conducted some research ourselves, which we have sent to the Committee in advance, "FOI One Year On", and in that research we set out the experiences, the attitudes and the reactions of a good cross-sample of public authorities. It is being used heavily. We estimate that over 100,000 requests were made in the first year. No-one knows the exact figure. It could be as high as 130,000, but large numbers of requests are being made, and I find it very reassuring that the majority are coming from members of the public. It is not just, as some had predicted, the media or pressure groups; members of the public are heavy users of the Act. A very wide range of information is now coming into the public domain which would not have been lead without freedom of information. I would be happy to elaborate, but we have got material here giving many examples of information which has been, for example, recorded in disclosure logs of individual public authorities or reported in the press. We have got many examples of information which is being released. So I would say there have been real benefits for the users, both individuals and organisations making users. Taking a broader answer to your question, a lot is talked about culture change, FOI being introduced to achieve culture change across central government and the wider public sector. My judgment is that the culture is changing but has not yet changed. I have indicated that most public authorities, we think, are coping, but, I am bound to say, there are still pockets where there are some difficulties, some government departments, some other public authorities, in some cases, being somewhat cautious, somewhat reluctant, perhaps even somewhat resistant to some of the demands of the new legislation. We saw the first year as a learning year for ourselves as an organisation and also for public bodies generally and we tried to be reasonably tolerant, reasonably non-confrontational trying to help public authorities get it right - a lot were struggling, certainly in the early months, to understand the implications - and I think we have resolved that we must be considerably tougher in some respects as we go into the second and third year, and we have already started to show some signs of how we can be tougher using the range of tools at our disposal. We were speaking at a conference in Cardiff this morning on this subject, and one of the messages we are communicating to a wide range of public bodies is that no public body can assume that business is as usual. Pre 2005 the way things were done then has been changed fundamentally by the Act itself. I am sure you will want to ask us some questions in a moment about the work of my own office, and we will be happy to take those as they come forward.
Q3 Jessica Morden: You have had your learning year and you are going to get tougher next year. What practices and procedures do you plan to put in in the future in order to cope with some of the problems that you have had?
Richard Thomas: Perhaps I can say a bit more about our own handling of case-load. I am not sure whether your question was directed at that or directed at the wider questions about putting more pressure upon public bodies. We have got a very active programme of giving guidance, and some of that guidance will now be updated, but, also using our powers, we have the power to serve what is called an "information notice". Where a public authority has been rather slow at sharing the information with us, we can serve an information notice requiring us and us alone at that stage to see the information. We have served seven of those quite recently. Moving forward, we have the power to serve an enforcement notice where a public authority, if you like, is systemically not fulfilling its responsibilities, and we can also serve a practice recommendation. There are not many teeth behind a practice recommendation, but it is, if you like, potentially an instrument to highlight where a public authority is not getting it right. We are also making a lot of reforms inside our own organisation in terms of speeding up the handling of our own case-load. Would you like me, Chairman, to go into that in more detail?
Q4 Chairman: We can go into more detail later, but are you not having to move people from all this guidance work to deal with your backlog of cases?
Richard Thomas: Indeed, that is one of the anxieties I have, Chairman. I am very glad you have picked up on that. We are having to cope with a very demanding case-load, both in terms of quantity and in terms of the quality and the difficulty and the complexity of the work, and some of the very short-term measures we have been taking in the last two to three months has been to move people across from our promotion and development side to complaint handling. The more we are under pressure to move staff into complaint handling, I have to say straightaway, the less we can do by way of promotion and guidance. We did an awful lot, which we shared with the Committee, over a year ago, during 2003/4. I think we feel pretty proud of what we achieved through our guidance programme, and that, I think, did prepare large chunks of the public sector for the implementation of the legislation, but the more that we are losing staff from that side the less we can do.
Q5 Jessica Morden: Can I take you back to the appeals that you received last year. Why do you think so many of them were incorrectly formulated when they got to you?
Richard Thomas: One of the issues that we have really come across is that perhaps the complaints did not come to us neatly packaged as we might have expected. We had perhaps expected that once the request has been made to the public authority, once it has been through an internal review, both the requester and the public authority would know what the issues were and would present them to us, if you like, as a package which we could investigate quite quickly and make decisions quite quickly. I am bound to say that both the way in which many requests have been articulated, the way in which complaints have been brought to us and the responses of the public authorities has been a great deal less tidy than we might have expected, and we have had to spend quite extensive time in many cases investigating the circumstances ourselves in communicating with the public authorities to find out what the issues are about and then crystallising the issues before we can make a decision. That has been one of the problems which we have encountered over the last year.
Q6 Jessica Morden: Do you think that is because there was not enough advice given to the public initially about how to formulate their appeal? Could I ask what kind of advice you have publicly made available to people in order to go through the process?
Richard Thomas: We have put guidance out in terms of how to make a request and what the issues are. The Act is very general in its requirements. The Act does not allow us or anyone else to be prescriptive as to how a request is formulated. In general terms, we have given guidance. There is material on our website, we have put material out and the DCA have also put material out. We did not engage in high-profile advertising. In Scotland there was some television advertising, but we deliberately did not go down that sort of road because we knew there was going to be a very busy year during 2005, and, indeed, it was a very busy year, and, frankly, if more and more requests had been generated by a high-profile advertising campaign, I think that would have made it very difficult.
Q7 Chairman: I do not think that was Ms Morden's question. She was asking about incorrectly formulated appeals.
Richard Thomas: I was going to come onto that, Chairman, dealing both with requests to public authorities and then complaints to us. The appeal goes to the tribunal. It is a complaint which comes to us. Again, there is no prescribed way in which a complaint comes forward. Simply, under section 50 of the Act, anyone can make a complaint to the Commissioner that the public authority has not dealt with their request in accordance with the requirements of the Act. One of the changes we introduced during 2005 was to introduce a complaint form. This is not statutory. There is no explicit legal power to do that. We thought it would be helpful to publish a form to help people to narrow down the issues, to state the bare facts of their complaint and the circumstances, so that both they and we could get a better grip on what the issues were.
Q8 Jessica Morden: What steps do you think you will make in the future to make it easier for applicants to understand how they can enforce their rights?
Richard Thomas: In terms of dealing with my office, we enter into a dialogue much faster with the complainant. We have enlarged the functions of our case receptionist, so we have a much stronger triage system when complaints come in. We communicate with the complainants. Quite a lot of the complaints were incomplete - we did not have sufficient information to proceed. We are now substantially faster than perhaps we were in the first six months of last year in going back to the complainant and saying, "In order to proceed with this case you have got to provide further information." We are trying to be as user-friendly as possible in getting that information into our system so that we can progress the case as fast as possible.
Q9 Jessica Morden: A large proportion of the decision notices which you published in 2005 concern non-compliance of authorities upon procedural grounds. Why do you think that is the case? Can you give some examples of what went wrong?
Richard Thomas: Procedural cases are largely those where there is a dispute as to whether or not the information is held by the public authority, and, secondly, about delay in responding to requests for information. On the delay side, there has been a less than satisfactory performance on the part of some public authorities and we are trying to address that to speed up the process generally and, as you say, some of our decision notices have addressed the question of delay and identified that they have been slower than they should have been in dealing with the request. In terms of disputes about whether the information is held or not, that is actually quite a difficult territory. Many of the complainants were absolutely insistent that the public authority must hold the information. The public authority denies that. It says either, "We have never held the information", or, "Perhaps we did hold it but it has now been got rid of, disposed of", in some cases many, many years ago, and proving a negative in this situation is difficult for all parties concerned. We do probe some of the cases to find out the circumstances, if the argument being put forward by the public authority is plausible. If they can show that they have got a record of its destruction, if they can show that they have got a good reason for disposal, if they can show that similar documentation has been disposed of in accordance with their records management policies, then we are more likely to accept it than if we get a rather muddled or inconsistent response from the public authority.
Q10 Jessica Morden: Do you think some of the problems with the public authorities could have been ironed out if clearer advice had been given at the outset? Do you think there is an argument for giving more information, guidance and more training?
Richard Thomas: With respect, I do not think so. We had some exchanges with this Committee at the end of 2004 and I think that we were proud of the guidance we had been giving, and, to a certain extent, public authorities were suffering a bit of guidance fatigue, almost too much information being published. If I can just give you the figures in terms of the amount of guidance we have put out: 29 awareness guidance notes, three casework advice notes, six general guidance notes, 11 still in the pipeline, so covering a very broad spectrum. I have got a full schedule if you want to see the schedule of all the guidance notes, but we did put a lot of guidance out and we have not had anyone say to us we have not hit the main targets, as it were. We see a need for some updating of our guidance - we always knew there would be a need to update it in the light of the cases as they come forward - and the cases in the pipeline are addressing that, but I would resist any suggestion that we did not put enough guidance out in the run up to the Act in January 2005.
Q11 Mr Tyrie: I want to come back on a point you made in response to the Chairman. Did I understand you correctly to say that you have had to move people from guidance work to complaints work because of the volume of appeals?
Richard Thomas: Indeed, and we may have to do more of that.
Q12 Mr Tyrie: Was that volume of appeals unexpected?
Richard Thomas: The volume running for the financial year is about 14% - we predicted 2,250 for the year and we think that by the end of March it is going to be closer to 2,600. The volumes are higher, 14%, perhaps as much as 20% higher.
Q13 Chairman: That is not a very big difference.
Richard Thomas: It is not a huge difference. We were not badly out in our forecast. What I would say, Mr Tyrie, is that the complexity and the lack of tidiness, which I mentioned to Ms Morden earlier, were more demanding that we had expected. Each case, in other words, taking substantially longer than we had anticipated, but, because cases are taking longer, because they are complicated, because they are demanding, they are taking longer than I am comfortable with, and we have made many responses, but part of the response has been to move people. We have moved, I think, five or six people so far cross from the promotion, development side to complaint handling.
Q14 Mr Tyrie: It is a bit worrying because you said that you would need to respond to the volume of complaints when you came before us last year. You correctly predicted the volume of complaints, even though you said it was extremely difficult to predict. I have got your predictions here, which were that there would be between 1200 and 3,000 and the out-turn has been pretty much exactly where you said it was going to be, and yet, for some reason, your staff do not seem to be in the right slots to be able to cope?
Richard Thomas: I would not draw that conclusion. I would say that the first year has been considerably more challenging than we would be comfortable with. I am not comfortable with the fact that we have a backlog at the moment, and I can say few words about some of the measures that we have taken to deal with that. As things stand, at the end of February we had received 2,843 cases, we have closed 1,507 but we have got something like 1,500 live cases at the moment. We have a backlog of about 700 cases. It has gone down since the paper we put to the DCA at the beginning of the year. We are making improvements. We have put in place a recovery plan. There are a number of elements to that. As I mentioned earlier, we have substantially strengthened our case reception arrangements. We are looking far more closely, when a case comes in, as to whether it is eligible, whether it has been through the internal review process, whether all the information we need is complete, whether there has been sufficient contact with the public authority. I have mentioned the new complaint form we have introduced. We have substantially increased our case management, so we are looking to prioritise cases more. We are moving away from more of a cab-rank principle, dealing with cases on a first come first served basis, and we are now looking at the cases by reference to greater prioritisation. We have strengthened the senior staff. Jane Durkin, my Assistant Commissioner, has been moved into this area as from November. I have mentioned the staff transfers. I have also had to take some locum lawyers onto my staff on a temporary basis to help us out, and we have taken decisions to cut down the number of academic cases we deal with, those cases where, in theory, we are able to criticise a public authority for breaching perhaps a procedural requirement but the information has been disclosed, and, therefore, although it may have been late, we see no useful purpose in serving a decision notice. Moving ahead, at the moment we have a firm of consultants, PA Consulting, who are looking more closely at some of the ways in which we do things, and I can anticipate that there will be further changes in our structure, in some of our processes and in the way in which we manage performance. I would say, though, that we have done pretty well in the last three or four months. In October we dealt with 144 cases, in November 117. As a result of some of the changes we introduced in the autumn, the cases went up to 240 in December, 180 in January, 257 in February, and so our performance is improving and we are getting to grips with the cases much faster than perhaps in the first part of 2005. Equally, and I would like to say more about this either now or on the record, we do think that we do not have sufficient resource. We have put a bid into the Department for additional resource. Again, I can elaborate that point now, Chairman.
Chairman: We are going to come back to that.
Mr Tyrie: You said it was going to be extremely difficult to predict the number of appeals a year ago, or when you came before the Committee in 2004. You have predicted it correctly, and yet we have a backlog, plus a public expenditure fee. It does seem a bit curious?
Q15 Chairman: You are obviously a lot better at predicting than you are at preparing for the situation you predict.
Richard Thomas: I think all of us knew that we were in difficult virgin territory. We had to recruit largely brand-new staff to get to grips with this. Some of the staff did not arrive. We did not want to have staff in place before the implementation, but some of them took a bit longer than we had expected to arrive, so we had a bit of a slow start. There was quite a surge of cases in the early part of 2005 when cases were coming in as we were getting our staff up to speed. I do have to emphasise how difficult it can be for our staff to get to grips with the cases. We are not familiar with the workings of the public authorities we are dealing with and we have to ensure that our staff are very quickly getting up to speed in terms of what the issues are. We had the problem, which this Committee identified, the so-called big bang problem of 115,000 public authorities all starting at the beginning. I think my predecessor and myself had expressed reservations about this. It was a done deal and I had to accept the Government's line on that, but my personal feeling is that, rationally, one might have started a little more incrementally rather than having the big bang of every public authority starting at the same time, and this Committee picked up on the same point in its last report. I have mentioned the fact that quite a few of the complaints are not as fully or well presented as we would like. We have had quite protracted correspondence for some public authorities, sometimes through the need for them to get more familiar with the legislation, in other cases perhaps a bit of foot dragging on the part of public authorities. Complexity, factually and legally, is a challenge. It has taken us and taken public authorities quite some time to get to grips with the situations. In the last few months we have been churning out decision notices quite regularly, and, if you look at the detail of some of these, you will see how complex and demanding some of them are. Quite regularly now a decision notice has to run to ten, 11, 12 pages of quite close analysis before we can reach a conclusion on a particular point.
Q16 Mr Tyrie: I am a little worried about another of your replies when you said that your staff are not familiar with the departments that they are monitoring. You are recruiting people with an eye to trying to obtain staff who are familiar, I hope, with the departments they are trying to monitor.
Richard Thomas: By and large that is not an option which is open to us, because most of my staff are based in Wilmslow outside Manchester and very few come from a Civil Service background. In any event, I do not think that we could expect to have that many civil servants populating my office. There would be questions about how independent we really are. We have some people from local---
Q17 Mr Tyrie: Ex civil servants. Is not this a lacuna? If you are going to be a game-keeper, is it not a good idea at least to have some familiarity with the main highways and by-ways used by the poachers?
Richard Thomas: Of course it is, and I entirely accept that. I myself have worked in the public sector in the past, as have some of my staff. I am saying that not all of our staff can have that sort of background. We also have quite severe constraints on our head count and also on the salary levels which we can pay to staff. We have had to have quite a few staff coming in. The two main grades of staff we are recruiting for complaint handling, at one level the starting salary is £15,000 a year, for the other grade the starting salary is £25,000. You will not get very many people at those sorts of salaries who have got extensive experience of working inside the public sector at a senior level.
Q18 Mr Tyrie: You seem to have moved from saying we have got staff in the wrong slot to staff who are not yet trained up and you are now finally saying we have got the wrong staff?
Richard Thomas: No, not at all, Mr Tyrie. I am giving you some of the factors which we have had to deal with. There is no single answer to why we have backlogs, nor is there a single answer to what we are doing about it. I am trying to give you a range of the factors and the situations and, indeed, what we are doing about it.
Q19 James Brokenshire: Let us move on to the public authorities that you have to deal with. Are you satisfied with the level of compliance with the 20-day statutory time limit?
Richard Thomas: Yes and no. We have seen public authorities meeting the targets, and there is quite a good track record with some public authorities of having a high proportion of their cases which have been dealt with inside the 20 working days. I think you have had a submission from the BBC which claims a good record on that front and other public bodies are doing likewise, but in other situations we have seen public authorities struggling to meet the statutory limit. In other cases, where they are considering public interest considerations, they are entitled to take a reasonable time beyond the 20 working days, but there have been examples where that has been really quite seriously extended. In preparation for my session with you this afternoon, I asked my staff to give me details of some of the delays they have encountered and I have got 31 examples here, 17 of which relate to central government, where there has been greater prevarication than we are comfortable with. To give you some examples: "They needed to seek the view of the Minister, "Slow at responding and missing deadlines for response", "We had to chase up", "No further contact from this department to date", "Attempts to move things along have drawn a total blank". That is why I said we are now toughening our act; we are now using our powers to chase these up. We were quite tolerant in the first year. We knew that everybody was getting up to speed. I deliberately did not want to choose a confrontational approach either with Whitehall departments or with other public authorities, I wanted to get them gradually into the swing of dealing with it, but now we recognise that there have been longer delays than are acceptable in some areas within various parts of the public sector.
Q20 James Brokenshire: It is interesting that you focus on central government: because I think the statistics show that central government itself is only satisfying the 20-day time limit in 75% of cases. Do you think that they should be setting targets for the compliance themselves, or what more do you think they should be doing, given that you have already told us of the fulsome guidance notes and the steps that you have already been taking. It does not sound as if it is a lack of information that you are providing; it is a lack of response on their side.
Richard Thomas: I think there is a range of reasons. Graham may want to elaborate on some of the these in a moment. Where they are giving us a good story, they are saying, "We need to contact some third parties", "We need to seek legal advice", "We have gone to counsel on this", then I think we can be a little more tolerant than if we think they are just letting it go to sleep or they are not on the case. At our conference this morning we were hearing about a couple of cases where key staff had gone on holiday, and we are making it clear that is not acceptable. They have got to keep the pressure on. If we think they are trying, then we will be less draconian than if they are not trying.
Q21 James Brokenshire: It does not sound as if 25% of the cases would be where they are going to counsel or seeking detailed legal advice on this sort of thing.
Richard Thomas: I am not suggesting that. I am saying that is one of the examples. Having said that, I think quite a few public authorities, particularly those nervous about disclosing information which they do not really want to disclose, are looking deeply into the exemptions, looking at the various grounds on which they do not have to disclose the information, and that, I think, is causing some of the delays.
Q22 James Brokenshire: But would you accept that there is value in information being provided quickly, and if information is not being provided quickly that that can reduce its impact, can reduce the invaluable nature of the information that is provided and that therefore delay and prevarication is going to be a very useful tool in the armour of somebody who does not want to give it?
Richard Thomas: I recognise entirely that information, if I can coin a phrase, can be a perishable commodity, and it is taking longer than some public authorities should be taking in dealing with requests, it is taking my office longer than I am comfortable with. I am coming clean this afternoon in saying that we know we have got to both improve our performance, and we have been doing that in the last three or four months. We can do further improvements but we need more resource as well, but, yes, information can be a perishable commodity. Equally, I think it is unrealistic to expect this always to meet what I might call journalistic deadlines. A lot of the information has never seen the light of the public domain before, there is a nervousness across both government departments and other public authorities about the extent to which they are being required to release information and I think it is the incremental approach rather than a sudden dramatic change overnight.
Q23 James Brokenshire: What do you think needs to be done to improve compliance?
Richard Thomas: I think it is more of the same in terms of public authorities recognising that this Act is here to stay. In my judgment we are country number fifty something in having freedom of information laws. We have been perhaps slow to have a freedom of information law in this country. Now we have got it I think it is here to stay, and I think people are coming to terms with what I said earlier - it is no longer business as usual - that public authorities are perhaps changing the way in which they do business. As far as possible, I think, most are seeking to be genuinely open, i.e. use the language of enlightened self-interest quite a lot, and I think most public bodies see the merits of being more accountable. They want to build trust with the general public and with other stakeholders, they want to be as open as possible, but sometimes there will be embarrassing information or sensitive information, and those are the areas, perhaps particularly at central government level, where it is taking longer than anyone should be comfortable with. Using this occasion this afternoon and other occasions in the last two or three months, we are sending out the signal that we will be tougher. You ask me about what more can be done to secure compliance, we will be using our powers to serve practice recommendations and enforcement notices increasingly after that first, if you like, learning year.
Q24 James Brokenshire: Certainly up until November of last year you had not served any practice recommendations at all?
Richard Thomas: That is still the case. We have still not served any.
Q25 James Brokenshire: Do you feel that you perhaps should have been a little bit firmer in this first year because of this 25% lack of compliance by central government?
Richard Thomas: I would say that the priority of the first year has been getting to grips with the complaints. The complainants, understandably, want us and public authorities to respond as quickly as possible, so the priority for the last 12 months has been very much dealing with the complaints as they are coming in, learning how to do our job and making sure we are doing that job as quickly as possible.
Q26 James Brokenshire: To be clear in terms of the actual information side of things, it is not awareness; it is non-compliance and excuses, if I can put it like that?
Richard Thomas: I think that is broadly right. Our survey indicates that the vast majority of public authorities are aware of the legislation. I think the figure is 98% of public authorities said they were aware of the implications of the legislation, 66% were very aware. What is quite interesting is that research does indicate that 81% of public authorities we questioned in our survey said that freedom of information was a very or a fairly good thing. I am extremely encouraged by that sort of feedback. We could have seen people saying, "No, it is a burden. It is something we do not welcome. It is a problem", but 81% are saying it is a fairly or a very good thing, and that figure rises to 86% for larger public authorities, which will include most of the Whitehall departments, and they recognise the benefits in terms of increasing trust, releasing more information. Only 3% told us it is a bad thing, and that is a pretty small number. We are trying to use a carrot and stick approach. Answering your question, we are using as many carrots as possible, trying make it as easy as possible. It was said this morning, there are big sticks in our armoury. We need to demonstrate those and use them on occasions, and we will be doing so increasingly as the year goes forward.
Graham Smith: Could I add something to try and further answer the question that has been put. One of the things that we are trying to convey today is that there is a very mixed picture across the whole of the public sector. I would not go so far as to say there is not an awareness problem. There is not an awareness problem in central government.
Q27 James Brokenshire: It is just a compliance problem in central government effectively?
Graham Smith: That is a different issue, but, given that we have got 115,000 public authorities covered by this legislation, some of which are very small, there has been a major exercise that we have been going through as we have investigated some of the complaints because we have received complaints where it has quickly become apparent that the public authority has not been fully aware of its responsibilities. Some of these are small parish councils, they are NHS trusts, they are individual health centres, they are primary schools where somebody has tried to exercise their rights under freedom of information, and, clearly, the public authority has been a bit surprised. In dealing with the complaint we have been taking those public authorities through the process of freedom of information and making them aware with a view to trying to resolve the complaint at the local level. I think it is important to recognise that the Act is designed in such a way that the request for information is made to the public authority and that is really where things should be resolved, if possible. We do have to get involved and wield the sticks in cases where there is blatant non-compliance, but all I am trying to do is balance the picture by saying we have had a number of cases where we have been educating the public authority as we have gone along. We have always said that we would not be tolerant of wilful non-compliance, and there have not been many cases where we have seen wilful non-compliance. I think we have seen more cases where there is a need for greater awareness and greater understanding of the full nature and extent of the public authority's responsibilities.
Q28 James Brokenshire: From your answer, Mr Smith, you obviously have come across cases where there has been wilful non-compliance. Why have you not used the stick in those circumstances?
Graham Smith: We are starting to. I do not think we have seen many cases where there has been wilful non-compliance, but we are starting to see some patterns emerge, and they have been referred to in our written submission, issues where perhaps the public interest test exemption is used very often and accumulatively to extend the period of time within which the public authority has to respond to the complaint.
Q29 James Brokenshire: But we have waited a year. It is a year on and you still have not used your enforcement powers. Are we going to be here in another year and you still have not used them?
Graham Smith: We have used our enforcement powers. The decision notice is the first step in our enforcement powers, and failure to comply with a decision notice is a matter of contempt of court. We have not had any obvious case of wilful compliance which has gone down that route, but we do have also an appellate tribunal which sits above us, and, where a public authority is reluctant to accept our outcome through a decision notice, then they can exercise that right of appeal, and they are doing so. I do not think we can draw too many conclusions from the first year. We have recognised and acknowledged that we need to and will use our strong enforcement powers and the sticks in cases where there is a pattern emerging of wilful non-compliance, but those are very exceptional at the present time, and we are pursuing those. I am saying that we need to do that more in the future, but there is quite a long process, going from the initial request through internal review, complaint to ourselves and then an appeal to the tribunal, and we need to get a pattern emerging before we can use our strong powers such as enforcement notices. As yet, as I said, we have not had to instigate any contempt of court proceedings for refusal to comply with our orders.
Q30 James Brokenshire: On the specifics of the 20-day statutory period, are you happy that that is the right length of time. In other words, that over the course of this year 20 days is the right time-period rather than any other time-period?
Richard Thomas: It is 20 working days, but I have no reason at all to suggest that is inappropriate. I think that is the standard set down for public authorities on the face of the Act. As my colleague Graham Smith has said, there are situations when that can be extended, particularly in public interest considerations. I think the area I am most concerned about, frankly, is where perhaps they come to us and ask for an extension or another extension. We have been fairly tolerant. We will be being less tolerant as we go further forward.
Q31 James Brokenshire: Let us explore that a little further, because obviously one of the reasons why delay can occur is if this argument of public interest, the public interest test, is raised. What is your view on the length of time currently being taken by authorities when they run that public interest argument?
Richard Thomas: In some situations they will need the time, but I am increasingly sceptical they need as much time as they are taking. We have got one example where I think they required six extensions of time, and I am not prepared in future to let my staff have that degree of tolerance towards a public authority.
Q32 James Brokenshire: Is that the sort of situation where you would issue a practice recommendation or something like that?
Richard Thomas: That is may be exactly where we might come down in the future. It is right to recognise that in that first year it was new territory for everybody. Public authorities were dealing with some boundary testing cases and needed to really seriously think about how the Act was going to apply. After the first year, we are now into the second year, I would not expect to see that sort of time being taken on those sorts of cases again. I hope I am sending a very clear signal that where public authorities are taking an excessive time to consider the public interest considerations that will not be acceptable. We are working towards giving more explicit guidance. I cannot create law on this front, but what I have been saying increasingly informally, and perhaps we will find ways of saying it formally, is that two months ought to be quite long enough for anybody to go through a weighing of the public interest considerations.
Q33 James Brokenshire: Another period of delay, and I know this is an issue where you have also turned down the complainant when they have gone on to complain to you, is where the internal review process - in other words the procedure that is adopted within the authority itself - has not been followed through. In relation to this whole process of internal review it is an easy argument to put up: "Oh, it is all in our internal review process", and yet we are nine months down the track and it is still in the internal review process and has not come out again. How can you practically do something about that?
Richard Thomas: I think you are right to raise that. It is an important point and one that concerns me, as I am sure it concerns you. It is not a statutory process in the same way as it is in Scotland. In Scotland there is a mandatory internal review on the face of the Act. What the Act says in the UK, the Act which I am responsible for, is that, in effect, the interaction of section 50 of the Act and the Code of Practice is that normally we would expect an internal review to be undertaken by the public authority before we start to deal with the complaint.
Q34 James Brokenshire: Would you like to see that more Scottish style of approach adopted? Would that help you in terms of dealing with your business?
Richard Thomas: I do not think we are currently in the business of suggesting revisions to the Act itself, but that will be on my shopping list, something in that area to perhaps create a tighter mandatory requirement for internal review. I think it is a healthy stage to have a more senior review of a case inside the public authority, because one could understand perhaps more junior staff are dealing with it and then it does need to be taken to a more senior level for review; but I think, were it to be made mandatory, there would have to be quite strict time limits. We are having to work with rather general language at the moment, and I think I would want to see the same approach to time limits as exist for requests in the first place. So, yes, the answer is we would like to see a tighter control there, but, equally, where we feel that we are being spun a line by a public authority, we think that they are not actually pursuing the internal review as fast as they should be, then we will do our best to put more pressure upon the public authority to speed up their act.
Q35 James Brokenshire: Is this again an area where a practice recommendation would be appropriate?
Richard Thomas: It may be, but please do understand - and this goes back to the questions that were put earlier by Mr Tyrie - we have very limited resources to do this. I am having to put large numbers of my staff into complaint handling. The more we move staff into complaint handling the less we have for the enforcement policy of the guidance area. We are very stretched.
Q36 James Brokenshire: But, as you can appreciate, if people put in an application under a Freedom of Information Act inquiry a year go and they are still sitting here a year later without that information, they are going to be quite frustrated to hear from you, "Sorry guys, there is not a lot we can do about it. We have not got the resources. Therefore it has not got the teeth to actually bite on this authority to do something about it"?
Richard Thomas: I hope that is not the message we are conveying to you is afternoon. We are not sitting back. We are certainly not complacent about the situation. We have got a double target in this area. One is to get individual complaints resolved as quickly as possible so that people are not sitting there feeling frustrated, but also using our more general powers to put pressure upon public authorities to speed up their performance generally. The emphasis in the first 12 months has been primarily on getting the complaints through as quickly as possible. We will still be doing a lot of that for the next 12 months. There is no doubt of that. What I am saying is that, to the extent possible, we will be using our formal powers to improve performance at a more general level.
Q37 James Brokenshire: On this issue of internal review, you will therefore be issuing more and clearer formal guidance in addition to the 23, or however many other guidance notices you have issued, on this as to what you regard as reasonable and acceptable in terms of the time taken and the procedures to be adopted.
Richard Thomas: I have indicated already that, without making it a formal requirement, because legally I cannot do that, I am indicating that in my judgment two months should be long enough for public interest considerations?
Q38 Chairman: Do you have any special provisions for or way of dealing with those cases where the complainant can show that there is a time limit on his need for the information? For example, he may have a matter coming to a tribunal or a public inquiry or something like that?
Richard Thomas: I think Graham has a couple of examples of those. I mentioned earlier moving away from the cab rank principle, first come first served, which we started. We tried to be equitable in our treatment of everybody, saying no one deserved any special favours. I think with hindsight, that was not the best approach and now we are prioritising cases. We have got various criteria. They include: is it setting a precedent? Can it be grouped with other cases? Is it an important point of principle? One of the criteria is: is there a special reason of timeliness? If there is some pending legal challenge, or an appeal, or something of that nature, we will do our very best. It may not always be easy to meet those demands, because some people want the information very quickly indeed, but Graham may want to say a little more about that.
Graham Smith: We are trying to identify those cases. Obviously we are dependent on what the complainant tells us, but where they make it clear on the face of the complaint then we are, through having a more assertive case reception process, able to identify those issues and to respond to them positively. I can give one example where somebody involved in the work of a local authority wanted some information about housing stock in time for a ballot for an ALMO. Clearly there was a timescale for that and they needed that information, and so we were able to respond positively to that complaint and investigate it with all speed. I think we are having to draw something of a line between a situation like that, where I think it is entirely right and proper that the Act should be used and we should give some priority, as opposed to a case where perhaps there is a court case pending and there are actual rules of discovery already within the framework for the handling of the legal case and people are trying to get information to support their court case through FOIs is almost complementary or additional to the process.
Q39 Chairman: So they have an alternative resource.
Graham Smith: That is right. We are trying to be quite careful, but, yes, we are trying to be sensitive to those people's needs.
Q40 Keith Vaz: Mr Thomas, you must be very disappointed about the level of delays and the problems that are occurring?
Richard Thomas: Yes, Mr Vaz. I am not comfortable with the fact that we have delays inside my office, and I am being straight with the Committee that we recognised the problem as it was emerging in the autumn of 2005. We had an unfortunate long-term absence by one of my assistant commissioners who was away on sickness leave for quite along time. That, I am afraid did not help the situation.
Q41 Keith Vaz: How long was your assistant commissioner away for?
Richard Thomas: It was developing week by week, but about two and a half, three months at quite a critical time. I am not making excuses. That was a factor, but it is not something which I am using to duck away from the responsibility of all of us to get on with this. We recognised the problems as they were emerging in September and October. I have mentioned the recovery plan. My colleague, Jane Durkin, can tell you more about the plan which we put in place at that time. We recognised some of the changes we could make in the light of experience. I am proud to say that we are a learning experience and we learned from those early months when we were in complete unknown territory.
Q42 Keith Vaz: Of course. This was a new organisation implementing a new set of legislation. We ask these questions not to have a go at you, to get at you; we want you to succeed. That is why we are having this inquiry and looking what has happened over the last year. Do you think any of your activities were curtailed as a result of the lack of resources that you alluded to earlier on?
Richard Thomas: I will say a bit about it, if I may, Mr Vaz. We have put in place the recovery plan which I mentioned, and that has produced some worthwhile improvements as we are moving forward. I am proud of the quite considerable improvements in performance.
Q43 Keith Vaz: Do you think the resources you have got at the moment are enough?
Richard Thomas: No. I am going to explain in a moment why I think they are not enough, but I also want to emphasis that I am not saying that more resources by itself is the full answer. We recognise the need for improvements, we have started to improve and have made some worthwhile improvements. We can do a bit more as a result of the changes we will make over the next two or three months. This Committee, from our point of view, is not quite the ideal timing. We are right in the middle now of considering some structural and procedural changes going a step-change further. What we are clear on is that those changes will enable us, as long as the volumes stay within our predictions, to get to what we call a "steady state" - in other words, as many cases going out as are coming in - and, if we are making those changes, we are comfortable we can achieve that. Where we are not comfortable and where we do need more resource is dealing with the backlog. We have got about 700 cases now which are what we call in our backlog, and that is where we need the additional resource. The DCA (the Department for Constitutional Affairs) provides our resources.
Q44 Keith Vaz: You are going too fast here, and you are not allowing me to come back and ask you some questions. We all accept there is a backlog. You say it is about 700 cases. How much more money do you need?
Richard Thomas: We put in a bid to the DCA for the financial year starting on 1 April 2006. That was modified slightly on 6 January. We put in a refined bid following discussions at official level.
Q45 Keith Vaz: When did you put in the bid?
Richard Thomas: The 6 January.
Q46 Keith Vaz: This year?
Richard Thomas: This year.
Q47 Keith Vaz: How much was it for?
Richard Thomas: £1.13 million.
Q48 Keith Vaz: Is that the excess?
Richard Thomas: That is additional resource we are seeking for the next financial to clear the backlog.
Q49 Keith Vaz: At the moment you have got how much each year?
Richard Thomas: The baseline funding is £5.0 million.
Q50 Keith Vaz: You want an extra million?
Richard Thomas: £1.13 million for the first financial year to clear that backlog.
Q51 Keith Vaz: You put this bid in on 6 January?
Richard Thomas: Yes.
Q52 Keith Vaz: Have you heard from the Department for Constitutional Affairs?
Richard Thomas: I received an email yesterday.
Q53 Keith Vaz: I wonder why you received an email yesterday. This is our experience with the Department for Constitutional Affairs. Was it a friendly email? Have they given you the money?
Richard Thomas: I think it is best if I read out the key sentence: "I can confirm that we will provide additional funding for 2006/7 but the exact amount will be determined in the light of your business plan and targets and the efficiency programme which you will be introducing."
Q54 Keith Vaz: That sounds terribly clear, does it not?
Richard Thomas: I think it is for the Committee to draw conclusions, but I have met the Lord Chancellor twice in recent months. I have met officials.
Q55 Keith Vaz: On 6 January you put in your bid for an extra £1.13 million. Yesterday, the day before you give evidence to the Select Committee, you get an email from whom?
Richard Thomas: From the Head of Information Rights Division at the DCA.
Q56 Keith Vaz: Saying, "We will give you more, but we do not know how much because we have to look at whatever plan you have to make"?
Richard Thomas: What I am being told is that the Department is under considerable financial pressures.
Q57 Keith Vaz: Are not we all?
Richard Thomas: Et cetera, et cetera. I suppose it is encouraging to be told we are going to get something, but we do not know whether it is 10% or 90%.
Q58 Keith Vaz: You do not have to explain what they are saying. Just tell me from your point of view. It is 15 days to go. When do you need this money to be satisfied that you will not come back before the Committee this time next year and tell us there is still a backlog? When do you need this money by?
Richard Thomas: I will be very frank with you. I would like to have known how much we were going to get two or three months ago. I would like to have known the answer straightaway. As you quite rightly say, the new financial year is about to start. Even if I was told today I have got the £1.13 million, or whatever the figure is going to be, starting to spend that on 1 April is difficult - it takes time to recruit people, to train them up and get them in position - so already I am deeply anxious that we are going to be in difficulties as the financial year goes forward. We were asked by the Department at the beginning of February to give some figures as to what would happen if we got nothing, what would happen if we got 50% of our bid and what would happen if we got 100% of our bid?
Q59 Keith Vaz: What would happen?
Richard Thomas: We are saying if we got nothing it would take years to clear the backlog, if we got 50% we reckon we would clear the backlog in two years, if we got the full bid we put in for, 100% of our £1.13 million, we think we can clear the backlog, we said 14 months starting in January, so we think it would be clear by March 2007, but we have lost two or three months already.
Q60 Keith Vaz: You can already predict, as you have not received this money, that the backlog will grow?
Richard Thomas: We are making certain assumptions. We have been told we are going to get something.
Q61 Keith Vaz: But will the backlog grow because you have not received this money?
Richard Thomas: I fear absolutely, Mr Vaz, that is a real risk. I was very pleased over a year ago with this Committee, and if I can just read out and remind the Committee what you said in your report because resources are critical to this.
Q62 Keith Vaz: I am sure we can remember what we said. I am just trying to get the timetable right here. Even if you get the money tomorrow as a result of your splendid performance before this Committee, this will not be enough to clear the backlog until 2007?
Richard Thomas: If we got it tomorrow I think we could put that into action very quickly indeed, but the point you are making, and I am totally agreeing with you---
Q63 Keith Vaz: Every day counts?
Richard Thomas: ---every day, every week counts, and I have raised this personally with the Lord Chancellor. I have met Lord Faulkner a couple of times.
Q64 Keith Vaz: Tell us about your meetings with the Lord Chancellor. When did you last meet him?
Richard Thomas: I do not have the date with me, but I think it was about three weeks ago.
Q65 Keith Vaz: At his department?
Richard Thomas: At the House of Lords.
Q66 Keith Vaz: What did you say to the Lord Chancellor?
Richard Thomas: I said I had put in my bid for the business case, as we call it, our bid for a detailed business case. We sent a copy through to the Committee yesterday, because I gather you would like to see a copy of that, so that is with you. That was the 6 January document, and I said, "Lord Chancellor, we need this extra resource urgently. We need to have a decision. We are getting nods and winks from your officials we are going to get something. I need to know how much we are going to get."
Q67 Keith Vaz: What did he say to you?
Richard Thomas: He said, "I am sure my officials are doing all that they can to help you." He has said repeatedly, "I do not want FOI to fail through lack of resources", and I find it a very encouraging statement that he has made.
Q68 Keith Vaz: But?
Richard Thomas: But I still await. We are grant aided from the DCA. There are some interesting questions there about the Scottish parallel, for example, or the Parliamentary ombudsman here. The money is virtually directly from Parliament, and that is perhaps an issue this Committee may want to give some thought to. At the moment we are grant aided from the Department.
Q69 Keith Vaz: When you are lying awake at night thinking about this backlog, which I am sure you are, counting the number of cases as they jump around the field, do you worry that perhaps there is a hidden motive in not giving you this money?
Richard Thomas: I do not worry in those terms, Mr Vaz, but I think there is an interesting issue you have put your finger on there, which is I have to say I am a little uncomfortable that the same part of the same government department is responsible for policy on FOI, for leadership of the clearing house and for sponsorship of my department, and I think that there are some slightly uncomfortable questions there about competing considerations.
Q70 Keith Vaz: Do you think there is a conflict of interest?
Richard Thomas: I think perhaps maybe this Committee will want to speculate about that. I would not go so far as to say outright that there is a conflict of interest, but I think it is an uncomfortable juxtaposition of functions.
Q71 Keith Vaz: I am with you on the money aspect, but I am a bit worried about these consultants that you have appointed. How much are you paying for these consultants to tell you how to do your job?
Richard Thomas: What I should have said is that the one slight slice of additional funding which the Department has made available to us is £100,000 in the current financial year.
Q72 Keith Vaz: For consultants?
Richard Thomas: Yes.
Q73 Keith Vaz: They are very fond of consultants.
Richard Thomas: Well, they are our consultants, we commission them, they are reporting to us.
Q74 Keith Vaz: So they have given you £100,000?
Richard Thomas: They had £100,000 which they could spare out of the current financial year which was made available in the last couple of months, and we have used that to engage consultants.
Q75 Keith Vaz: To tell you what?
Richard Thomas: To look comprehensively at our structures, our processes, our procedure, to look through expert eyes objectively. It is an ongoing process. They are sharing their emerging findings with me and my team, but they are not yet in a position to make further recommendations.
Q76 Keith Vaz: And how long is the timetable for these consultants?
Richard Thomas: They have got to finish by the end of March.
Q77 Keith Vaz: This is an exercise you could not have conducted with your existing staff?
Richard Thomas: My existing staff are very focused on the day job of dealing with all our various responsibilities, and I think it has been helpful and has been a positive experience for us to have someone outside to look at us with fresh, objective eyes.
Q78 Keith Vaz: What worries me us that at the end of this process the consultants may turn round to you and say, "Actually, you do not need £1.13 million. Your procedures need to be changed dramatically, your structure needs to change and you need £2 million." What are you going to do then?
Richard Thomas: That is speculation. What I am anticipating is that they will say, "You have made some changes. Here are some further changes we recommend. Here is how we recommend you use such extra money as you do receive from the Department." If need be, if they say it is not going to be enough, then we would have to go back to Lord Faulkner in time to follow.
Q79 Keith Vaz: But your message to the Department is, "I want to get on with the job"?
Richard Thomas: Absolutely.
Q80 Keith Vaz: "I cannot get on with the job until you give me the money. Every day you do not reply to me the backlog grows and grows"?
Richard Thomas: That is the problem, Mr Vaz, and I am making that quite clear. At the same time, the reforms and the changes we are making enable us to achieve the steady state level. It is the backlog which is troubling me. Of course, if you do not tackle backlogs, they are there for ever and the cases come in and the backlog gets worse and worse, so I am deeply concerned about that.
Q81 Keith Vaz: Do you know what the average cost per case for carrying out their investigation is?
Richard Thomas: We have not got such a figure at the moment, and I am somewhat resistant to formulating such a unit of cost.
Q82 Keith Vaz: You do not have the figure?
Richard Thomas: I do not have the figure, no, and I think it would be undesirable simply to divide the total money made available to us. I mentioned £5.0 million. To simply divide the total number of cases into that I think could be quite misleading because the cases vary so much.
Q83 Keith Vaz: It is possible to do it, especially if you have got these clever consultants. Is that not one of the things you might ask them to do?
Richard Thomas: As I say, their work is work in progress.
Q84 Keith Vaz: Is this one of the things that you can ask them?
Richard Thomas: Indeed. That is one of the issues we are discussing with them. If I am being a little coy on this it is because it is their work in progress and they have not yet reached their conclusions, but one of the issues we are discussing with them is precisely whether we ought to be using more financial measures as one of the means of managing performance more inside the organisation.
Q85 Keith Vaz: Do you know what the costs are in other jurisdictions where they have got information commissioners?
Richard Thomas: I do not think we do.
Q86 Keith Vaz: Would this be one of the things your consultants would be looking at?
Richard Thomas: They are looking at the Scottish and the Irish experience on a sort of desk-based basis, but they are not paying visits and I do not think they are probing that deeply into that level of detail.
Q87 Chairman: However we are, so we can always ask the Scots how much their operation is costing. Are you not going to have to use some of your new money to raise the grading of your staff based on what you told us earlier. South Manchester is not a cheap place to buy a house.
Richard Thomas: As I recall, Chairman, your familiarity with Wilmslow and mentioning this point on previous occasions. I told you on previous occasions that I am really quite concerned about the salary levels which we are able to pay staff, and I mentioned the figure to you earlier. Our cluster four staff start at around £15,000 a year, our cluster six staff, more senior staff, on around £25,000 a year, and it is not easy to recruit good people with the right sort of experience. Almost none of my staff can afford to live in Wilmslow. We have people commuting in from a very wide catchment area, and I mentioned to you that I was concerned that the salary levels are, broadly speaking, about 15% behind public sector comparables. Since we last addressed issue with a select committee we have raised this with the Department. There are statutory rules which say that I cannot deal with salaries or head count without the approval of the Department. That was not forthcoming some 12, 15 months ago. What we did agree with the Department is that we would undertake a fundamental pay and grading review. We have had to hire a firm of consultants to do that for us. They are due to report in the next couple of months, and I am hopeful that will begin to address the problems of my staff, in my view, not being paid the sort of salary levels which are needed. I know you are due to visit Scotland quite shortly, and I think you will find there the salary levels for the staff of the Scottish Commissioner are like for like significantly higher than we are able to pay.
Q88 Chairman: So you may have to go back to the Department early in the next financial year?
Richard Thomas: We have yet to see what the outcome of this pay and grading review will be in terms of what grades are appropriate, what are the comparables for staff working in similar organisations, but I cannot rule out going back to the Department and saying that we need more to pay the going rate for the job. One of our corporate objectives is that we value our staff. We have got some extraordinary dedicated and good staff, but we want to make sure they are paid the right rate for the job and I cannot stand before you this afternoon and say that is the case at the moment.
Q89 Julie Morgan: What is your view of the standard of work produced by your staff? We have read some adverse comments about the quality of work that has been produced. Friends of the Earth, for example, say that they have received letters that were undated, no signature or senders name, did not identify the complaints and they have said that the standards of some of the work produced has fallen short of that expected of a public body. Could you comment on that?
Richard Thomas: I have seen that submission. I am not comfortable with it. I think there are very isolated examples. Graham may want to say a little more about that. No-one is comfortable with that being said. That is not typical. Friends of the Earth clearly have a very strong agenda in this area, and I understand some of the concerns they have been raising, but I do not think their experience is typical. I would also say that, in terms of the quality of decisions notices, I think there has been a very wide recognition of this. As our staff became more and more familiar with the task in hand, the standard, the quality of the decision notices has gone up quite significantly, and we have had a lot of external recognition for this.
Q90 Julie Morgan: It seems fairly fundamental that you have dated correspondence and that there is a signature at the bottom. Are you saying that what they are saying is true or not?
Richard Thomas: I am not saying it is untrue in the isolated cases, but we have closed something like 1500 cases. If it is two or three, that is two or three too many, but I very much hope those are very isolated examples.
Q91 Julie Morgan: You believe that it is in the region of two or three cases out of the whole lot?
Richard Thomas: I could not honestly put a figure on it, but I would be disturbed if it was more than highly exceptional that someone forgot to put the date on a letter.
Jane Durkin: If I may interject, the instance that Friends of the Earth mentioned was a one-off exercise that we did. Yes, it did happen, but it was isolated.
Q92 Julie Morgan: The standards and quality of the work produced by your staff you are satisfied with generally?
Richard Thomas: A commissioner is never satisfied. We get better all the time. We are a learning organisation. We are improving, we are raising our standards. Whether we will ever reach perfection I rather doubt, but I hope we are very much moving in the right direction.
Graham Smith: We have included in our recovery plans specific action to address the issue of training of staff, performance and knowledge management. I have looked into the individual cases which have been complained about, and, as James has said, these are isolated cases. I have also looked to see whether there is any suggestion in any case that poor quality of work had resulted in an adverse outcome for a complainant, and there is no suggestion of that at all. It was an unfortunate administrative error. The issue of decision notices, I think, is one where we have become increasingly aware that there is a real appetite for any decision and anything that we say about FOI, because public authorities, understandably, see our decision notices not just as a means of resolving an issue between two parties but also in these early days as something of an educative tool, and so we are trying to make them fuller now. We are responding to those criticism and the comments that have been made, we are giving a much fuller explanation as to what has gone on in a particular case, however apparently trivial or mundane, and to explain our approach to the investigation and how we have reached the decision that we have come to. I think there was an earlier question in the session today which concerned the fact that our early decision notices were to do with procedural complaints, straightforward things. I think that was inevitable given the way that the Act has been introduced. These were the things that people first had to complain about. They were complaining about non-response, about delay in response, about the process, the way in which their complaint was handled or not handled. What we are finding now is that the real substantive issues under the Act, the interpretation of the exemptions, the articulation and application of the public interest test, are now the matters which are coming to the fore. They are complex and difficult issues. They often require very fine judgments to be made. The fact that a public authority has reached a view, has confirmed a view, we have reached a view and then perhaps the information tribunal now are reaching a view, those views may all differ rather suddenly. I think that is simply an indicator of the complexity of some of the issues which these FOI complaints are raising.
Richard Thomas: Can I give one or two examples of some of the decision notices. In the last few months we have had a very important decision about the minutes of a senior board inside the Department for Education, whether that should be published or not. We have made a ruling on the airport in Derry in Northern Ireland as to the details of its contract with Ryan Air vis-à-vis landing charges at Derry Airport. We have dealt with this House, the question of Members of Parliament expenses. We have dealt with the Board of the Governors meeting at the BBC, the meeting when Greg Dyke stood down after the Hutton Report. We have dealt with the trial of Jeremy Thorpe and whether the proceedings of that should be put should be put into the public domain 28 years after that trial. Just yesterday we have made a ruling in relation to a university and the way in which it deals with its markings of exams, the grades awarded to people taking exams in a very important pharmacological area. These are difficult cases. We got a lot of press coverage for the decision we made on restaurant inspections, a matter of considerable importance to the general public. It was a case in South Wales. Bridge End Borough Council were resistant to publishing details of restaurant inspections. We negotiated a successful outcome with a couple of London Boroughs, but Bridge End were a little more resistant and so we had to give a formal ruling against them. You have to give your reasons and analysis of the situation - there are arguments running both ways - but all these cases can easily run to a judgment of ten, 11, 12 pages, as I said earlier. We have got examples here if you want to see some of those, but they are complicated, they are demanding and, I have to say, I am proud of the quality that my staff are achieving in these sorts of cases.
Q93 Julie Morgan: There are obviously very complex cases, and the once you have listed just now show that. How do you ensure that there is consistency in the decision-making that takes place and how much are you personally responsible for the decisions?
Richard Thomas: We have formally signed 158 formal decision notices as opposed to the informal resolutions. Graham, my deputy, has signed the majority of those; so there is a quality control there in respect of which Graham is the sole signatory. I myself have been signing some of these, but we also recognise that we have got to delegate decision-making inside the organisation. In the first year we wanted to keep a tight control to ensure consistency. Now we are more comfortable, we have learnt a lot in the first year, we are concerned to now delegate more of the straightforward ones inside the organisation. Of course, one of the risks, as you quite rightly say, Mrs Morgan, is that there may be a risk of inconsistency across the organisation, but we are doing our very best to mitigate against that risk.
Q94 Julie Morgan: How do you mitigate against the risk?
Richard Thomas: By involving a wide range of people, by discussion inside the office. Those in power to sign a decision notice will be at Assistant Commissioner level. If a case falls outside established principles or precedent, I would expect them to discuss the case informally. Our lawyers have an involvement in most cases, and they will still see it through a more objective prism. I cannot say we will never get an inconsistent case, but we are doing all that we can to achieve as much consistency as possible.
Q95 Julie Morgan: Finally, do you think decision notices are sufficiently full to ensure compliance from local authorities or from authorities in general?
Richard Thomas: Yes, Graham has mentioned that we have been giving rather more detail in our decisions than perhaps in the early months, and we recognise that people learn from the substance of our decisions, but for any complaint handling body there is always a tension between quantity and quality. If you want to avoid backlogs you have got to push the cases through as quickly as possible. If you want to get very high quality, that may slow the system down. The message I give to my staff and outside the organisation, as it were, aiming neither for a Rolls Royce service nor for an old banger. We are looking for a Ford Focus approach. We cannot afford to look under every stone. We cannot look at every issue raised in a case. We have got to cut to the chase, understand what the real issues are and make a proper judgment on the real issues; so acceptable levels of quality rather than the highest possible. A minority of cases go to a tribunal. They may then get scrutinised in more detail. We may want to modify our position before the tribunal actually has a hearing, but we have got to make sure that the volume of business, and it is a high volume of business, is pushed through within acceptable time frames. Although this Committee, quite understandably, has focused on backlogs and delays, I think we are not doing at all badly compared to other complaint handling bodies, compared to the courts, at dealing with comparable issues of complexity. I am not proud that we are taking longer than I would like, and we are addressing that, but, as I say, there is a trade off between quantity and quality.
Q96 Chairman: Referring to the tribunal, you have not had very many tribunal decisions yet. What impact have they had so far and how well is the tribunal working?
Richard Thomas: It is very early days, as you rightly say, Chairman. They have only really dealt with nine cases, seven of which have resulted in an outcome. It has been useful generally. The tribunal stands in our shoes. It can make decisions on fact-finding, on points of law, on the exercise of discretion from scratch. Most of those which they have so far dealt with were from our cohort of early cases where we ourselves were learning. They have upheld some of our cases; they have changed the approach in other cases. They can look in greater detail than we can. We are learning from their rulings. They appear to be taking a more purposive than literal approach than perhaps we had expected, and we are learning from the dynamic of that. We are not unduly concerned if on some cases they take a different approach. We have got a management target of recognising we will not win every case. If we win every case before the tribunal, we are being too cautious, and I am making it very clear that we said 75% of cases. Very few of the cases actually turn out to be a win or a lose - it is not quite as black and white as that - but we have in the last few months changed our own systems so that we are now looking at a case again, once we know there is going to be an appeal, to see: did we get it right? Should we change our position? We have already in one case withdrawn our decision notice and are substituting a new one. That is not statutory, that is not on the face of the Act, but I think I have a discretion to do things like that and I think that is a sensible approach all round.
Q97 Chairman: It is going to be win or lose for the complainant, is it not?
Richard Thomas: Not always, no. It is win or lose, but in many cases they will not get everything they ask for. It may be some of but not all that they ask for. That is what I meant by neither one nor the other. I do have some anxieties about the tribunal system as set out in the Act. I am the respondent in every case. Every case is an appeal against myself, and that has the slightly purist result that, for example, the public authority itself may be excluded from participation in the case, or, if they do come in, they have to come in as a third or a fourth party. If I can give an example of this, and I do not know if the Committee is familiar with our ruling on the National Maritime Museum case, but it is a good example. A request was made for information about how much money had been paid by the National Maritime Museum for a work of art. We investigated that and we decided, in the circumstances of the particular case, it did not have to be disclosed during the procurement process when the request was made, but we added that, with the passage of time, once the procurement was over, it was appropriate to disclose the information, and, indeed, the museum did disclose the information. The requester, despite getting the information, made an appeal to the tribunal and technically we lost that case because the tribunal took a different view from us as to the facts of the particular case. They decided that one piece of art was quite separate from another piece of art and that, once the procurement for the first work of art was over, it was safe to release the information. On a closer scrutiny, that was fine. What was interesting was that the museum was not able or chose not to take part in that tribunal. As far as they were concerned they were finished with the case and did not want to participate in the appeal. Behind them the Department for Culture, Media and Sport would like to have been involved but were not entitled to be there; so we ended up almost in the shoes of the museum, and that is a rather uncomfortable position to be in to explain or perhaps even justify the position of the public authority. We are looking in those sorts of cases to see if we can take a lesser role. Although the Act requires that we are the respondent, I would much rather see the real battle between the original requester and the original public authority. Let them put their respective points of view before the tribunal rather than me have to do it to justify the decision we first reached. We can do so much within the framework of the existing Act, but I think there is a slight unhappiness with the way in which it was drafted.
Q98 Chairman: You spoke about "pockets of resistance", a phrase that struck me. Are these people who are consciously not complying with the memorandum of understanding which was reached with the DCA on behalf of all Government departments?
Richard Thomas: There have certainly been occasions when departments and other public authorities have not been as rapidly forthcoming as we would like, and I have given you some examples. My staff tell me that there has been something of a hardening of attitude in the second half of 2005, which I find a bit surprising and a bit disappointing. I think it is probably as the tougher cases are coming forward where there may be reasons why they are reluctant to release information and are taking their time to make a decision, and in some of those cases they have not been as cooperative as I would have liked with my own department, with my own office, in either sharing information with us or giving us full explanations. I do not want to over-emphasise this, I do not want to say it is universally the case, but I use the phrase "pockets of resistance", and we have got to try and keep the pressure on in those areas.
Q99 Keith Vaz: Mr Thomas, what are your views on the proposed DCA review of fees regulations?
Richard Thomas: The existing fees regime was put in place very late in the day, only a matter of weeks before 1 January, and this Committee had some comment to make on that. We think the existing regime has worked pretty well from the perspective of requesters and, indeed, from my own office; so we are comfortable with the existing regime. Interestingly, in our survey only 6% of public authorities said that vexatious requests were a problem. We understood some of the alternate models which were being looked at during 2004 and we had anxieties. They were highly complicated and highly difficult, so the existing regime has the benefit, as I see it, of being simple, clear and certain and not acting as a deterrent to members of the public from making requests under the Act. I do have an anxiety that any fee regime which did deter members of the public from making a legitimate request would be inconsistent with the principle of open government. I am concerned about the Irish experience, where the fees were increased, and that had a very obvious chilling effect on the uses to which the Act was being put. I have to emphasise that fees are a matter for the Government, there is nothing in the Act which says that the Government has to consult with me on the question of fees, but I think it is appropriate for me, as I have done this afternoon, to put on record my general approach to the question of fees. There has been some discussion about vexatious requests as being a motivator for introducing a different fees regime, and I have to say I am very surprised that Government departments do not appear to be making any extensive use of section 14 of the Act. Section 14 entitles any public authority to exclude a request altogether on the ground that it is vexatious. We have put out some pretty robust guidance on this issue, we have issued a decision notice upholding Birmingham City Council on this matter, but we have not seen Government departments using this when it is obvious that a vexatious request is being made.
Q100 James Brokenshire: The last point that you made is interesting, because obviously there has been some press speculation that the amount of time used by Government departments in deciding whether a document is able to be disclosed or not should be included within the threshold of what is actually picked up out of the public purse. From what you have said I presume you would not really recommend that line of argument?
Richard Thomas: I would be anxious about it, shall we say. Graham may tell you more about the experience under the Environmental Information Regulations where we do have to look at the reasonableness of the fees. It is extraordinarily difficult for an office like mine to get involved in how much time was being spent on considering a case, at what level inside the Department, what is reasonable to charge on a per hour basis? The existing fees regime does have all the advantages of being simple, clear and straightforward and not being a deterrent. I would be pretty anxious about being required to make judgments on top of all the other judgments we have to make about the reasonableness of time being spent on considering cases. Departments are entitled now to refer to how much time is taken in locating the information - that is fairly straightforward, there are no problems there - but we would be concerned if we were required to rule on the reasonableness of considering the request and whether or not the exemptions applied and where the public interest test was to be applied in the particular case.
Q101 James Brokenshire: Mr Smith, is this an area where a similar sort of arrangement may have existed on another side, I think Mr Thomas was saying, in terms of adjusting the fees and the assessment of the fees? What was the practical situation that Mr Thomas was just referring to?
Graham Smith: There is a case which has actually gone before the Information Tribunal which concerned fees charged under the Environmental Information Regulations, which is the sister regime to FOI, but it flows from a European directive. The fees regulations under FOI do not actually apply under the Environmental Information Regulations, so a judgment has to be made by the public authority on what is a reasonable charge if it wishes to charge. The debate before the tribunal was the extent to which we should get involved as an arbiter of fees and whether our officer's time should be spent investigating the reason for a particular charge for photocopying, the nature of the documentation which is in issue and just setting a reasonable charge for that. The view that has been taken under the FOI fees is that that is a matter for government, which we think is appropriate. We have been trying to demonstrate this afternoon that we are dealing with many and various issues, and we do not think that a fees regime which caused us to spend further public money on determining photocopying charges in public authorities in a number of cases would be appropriate.
Q102 James Brokenshire: Obviously, whilst I can understand your reluctance to get into photocopying charges or minor issues like that, clearly there is a bigger picture on this. I know Mr Thomas referred to his discomfiture, if I can refer to it like that, in terms of the relationship of the DCA in setting the parameters on this: because clearly by, for example, suggesting that the cost of deciding whether a document should be disclosed or not with the public interest issues we have heard about, it is a great way of making sure that document never comes into the public domain because you know that the requester will not necessarily have the funds to say, "Okay, I will pay the legal fees over and above £600 to have this document released." Is that an unfair suggestion that I am making there? Is there a need for some independence on this side?
Richard Thomas: I was nodding with you as you were saying that. For the record, I agree with your analysis. Yes, we are very comfortable and happy to exercise our judgments on the handling of a request and whether it falls within the presumption of disclosure and the exemptions and issues like the timeliness to deal with it. All I am saying is that having to rule on the reasonableness or not of charges, if need be we will do it, but I am saying it is going to be a difficult judgment and I the question whether that should be the top priority for me and my office.
Q103 Chairman: Thank you very much indeed, Mr Thomas, Mr Smith, Ms Durkin. It has been an interesting year. You have predicted the scale of the problem but perhaps not the difficulties we have in meeting it. The Committee obviously will take a continuing interest in it and we expect to see you again some time in the future. We wish you luck in your negotiations with the Department?
Richard Thomas: Thank you, Chairman. Thank you for your time this afternoon. I would like to follow up with one written submission, just to give you some examples of some of the information that has been disclosed over the last few months. We have been monitoring the press. We had something to give you this afternoon, but perhaps I can make a written submission, because an enormously wide range of material has been disclosed at national, regional and local level, and I would like to share some of that with the Committee.
Chairman: We would be glad to have it. Thank you very much indeed.