House of COMMONS
MINUTES OF EVIDENCE
CONSTITUTIONAL AFFAIRS COMMITTEE
Tuesday 28 March 2006
MAURICE FRANKEL, STEVE WOOD and DAVID HENCKE
USE OF THE TRANSCRIPT
Taken before the Constitutional Affairs Committee on Tuesday 28 March 2006
Mr Alan Beith, in the Chair
Dr Alan Whitehead
Witnesses: Maurice Frankel, Director, Campaign for the Freedom of Information, Steve Wood, Editor, Freedom of Information Act Blog, and David Hencke, journalist, The Guardian, gave evidence.
Chairman: Mr Frankel, Mr Hencke, Professor Wood, probably many of us know all of you from your longstanding interest in this issue. I will ask Mr Wright to begin the questions.
Q104 Jeremy Wright: Good afternoon, gentlemen. We have got you here, as the Chairman says, because you are all experts in this. We are interested in your views as consumers of the system, more than anything else. I want to ask you first of all about how the new regime is working and, secondly, what problems you have identified with it, having seen it operate for some period of months. First of all, could you tell us a little about the benefits that you have perceived over the last 12 months of the new Freedom of Information regime? That is really to all of you. I do not know in what order you want to deal with it. Let us start from the left, shall we?
Steve Wood: I think that I would like to highlight the positive issues first of all. The breadth of coverage of the Act has enabled a relatively high number of requests that have been made this year. We know, although it is only an estimate, over 100,000 requests have been made. We know anecdotally from some of the research evidence we have seen that the largest percentage of requests is the public, and I think that should have been the main aim of a Freedom of Information Act. So I think that is very positive. Looking at the range of information which has come out, it is from the very high-level, high-density data, like information about heart surgeons and the Common Agricultural Policy payments, but also, looking at the lower levels, we can see that information is coming out about sales of school playing fields - right down to that low level. Those are the positive aspects I would like to highlight initially. I think that it is the breadth of coverage; that we have a consistent regime across all the sectors. That is one of the key areas I would like to highlight as one of the benefits of this year. The public are interested in the Act. That is what I am picking up. I get emails through my website from members of the public. People are very interested in using the Act, and we have had over 100,000 requests. I think that is particularly one of the positive things from this first year.
Maurice Frankel: I agree with that. I am very pleasantly surprised by the amount of information that has come out and the importance of a lot of it. I think that we have a functioning Freedom of Information Act, which was not always guaranteed. It was always possible that we would have one on paper that did not do very much in practice; but I think that we have a worthwhile, important piece of legislation and it is functioning at the moment.
David Hencke: As a sceptical old hack, I have been very surprised and pleased with parts of this Act. Journalists would not use it on a day-to-day basis, for a story you are running, but they would use it to get information on a wide area. Where it has been particularly good - the one we found the best, and we left time as a newspaper for them to respond, we did not just stick to the arid rule of 20 days - was the business of the Common Agricultural Policy and the funds. It basically meant revealing millions of pounds' worth of subsidies paid in England. To be fair to them, they took about three months, but they actually gave us more than we asked. They gave us comparative data over more than one year. The fascinating thing as a journalist was that it then meant that I got in touch with other European journalists who were watching what had happened in Britain. The net effect of what we have done in Britain - it is quite an accolade in a way - is that only Denmark among the European Union had released this information. Since then, a number of Spanish regional authorities have released the same information. The Dutch have released the information. Even parts of the French farming have come out. The Germans are involved in a huge row at the moment about whether to release it or not. But the people are advocating the release, using the British example that even Her Majesty the Queen has had to disclose the subsidies to Sandringham, and even a company as big as Tate & Lyle, which got an enormous amount of subsidies, had to disclose. So the effect of this Act has actually gone further than the UK in this case. It is making the European Union a bit more open.
Maurice Frankel: Although this information is not disclosed in Scotland or Wales.
David Hencke: I think that Scotland has just done it, has it not?
Maurice Frankel: As they move to a new system, they will disclose; but they are not disclosing the past payments, nor is Wales. They think that they would be in breach of the Data Protection Act if they did.
Q105 Jeremy Wright: That, broadly speaking, is the good news. Can I invite you now to be critical, if you so choose, and deal with some of the problems that there may have been over the last 12 months? The first of them, as we understand it, is that there has been a degree of delay in providing information. The 20-day period has sometimes been exceeded and there may have been delay caused by various departments going through their own protocols and systems before they provide information. Has that been your experience? Have you registered delay beyond what you would have expected, or is this, in your view, not a major problem?
Maurice Frankel: It is a problem at every stage. It is a problem in responding to requests. It is a problem in completing internal reviews. It is a problem in getting decisions from the Information Commissioner as well.
Q106 Chairman: We will move on to the Commissioner himself in a moment.
Maurice Frankel: It is a problem at each stage. One of the difficulties that we have is that there is a nominal 20-working-day response period, but it is expandable for an unspecified reasonable period, whenever public interest is to be considered. I think that is a strange way of organising the legislation: to say the public interest itself needs more time. I think one could better have said, "Where there is a need to consult third parties, or where the information is extremely voluminous, we need more time". I do not think the public interest needs more time. If it does need more time, I think that it is a pity that it is unspecified. One of the problems is that the length of the delays is not monitored in central government by the DCA. The number of requests where an extension is taken is monitored; the length of the extension is not monitored. So if you assume that departments respond to the monitoring data, to the shortfalls revealed by the monitoring data, the trend is for more requests to be dealt with in the 20 days. That is what we have seen over the year. However, we do not know what the trend is for those that exceed 20 days: whether they are taking one, two or three days, or whether they are taking six or nine months. We do not know what the spread is. That is not monitored and, as long as it is not monitored, we are unlikely to see major improvements there.
Steve Wood: The longest I have experienced is 70 working days. As well as the requests, the problem of delay means that you are often in a quandary as to whether you want to complain to the Commissioner at that stage because, if you take your complaint about the delay to the Commissioner, the Commissioner then only investigates the delay. You may end up by getting a response and an exemption is used, and you then have to go back again - relating to that part of your complaint. Sometimes, as a complainant, I am often nervous about using a complaint at that point about the delay. So I think that it creates a problem there sometimes.
David Hencke: Over delays, I notice quite a differential performance among different government departments. Probably one of the worst cases I have had - and I still do not have the information, and I think it is a year now - has been applying for some historic information that is available for the first time under the Act: the documents relating to the miners' strike. What has been quite interesting is that we applied to the Cabinet Office and someone else applied to the Home Office, dealing with the police, and also to the Department for Trade and Industry. The Department for Trade and Industry were brilliant, in the sense that they decided to alert National Archives and make available the old National Coal Board documents on what was happening in the strike. Furthermore, when you went to the National Archives and there were one or two missing, you could use their computers to put in an instant request, which they actually dealt with in 28 days, to get the information back. So they were really good. The Home Office did not volunteer stuff, but what they did do was, when someone requested information on the relationship between the police and other things, to release the information - which was good. The Cabinet Office - because we did not know what they held, it is perfectly reasonable, as a journalist, to ask for the titles of the files - their initial response was to say that the titles of the files were confidential advice to ministers, which we pointed out was rather absurd. The contents might be, but a title cannot be. Faced with that, they then said, "Oh, well, we can divide it into two parts: what we can tell you and what we cannot", and they decided that what they cannot was "a breach of national security". They changed the rules from saying, "We can't give you ministerial advice now. This is national security. You can't have half of this". The other half, they said, "Yes, we would look through it"; but they keep asking for an extension. The extensions have now run for nearly a year, and we still do not have the information. From what Maurice was saying, it sounds like they do not have to record the first one. So I have found them bad in that sense, and similarly in dealing with other ministries. Some of them are very good. Culture, Media and Sport seem to be very efficient and quite open about things. We asked about casino operators and we had a very good response and a lot of detail from Culture, Media and Sport. Local government, the ODPM, gave us information where the casino operators were not interested in meeting them - which was again honest. The Treasury gave some; but the Cabinet Office decided that this would involve policy and confidential advice to ministers. So the same thing was brought up to prevent you getting the information. I detect that almost the nearer you get to the centre of power, the least keen they are in telling us and the more delays that arise.
Q107 Jeremy Wright: Thirdly, can I ask you whether that lack of consistency extends to refusals for information, because that is the third element we are interested in? Where exemptions are used, where the information is not provided at all, is it your view that that is being done appropriately and is it your view that it is being done consistently, or does that again vary depending on the organisation you are asking for the information?
David Hencke: I think that it varies with the organisation. The Cabinet Office - I would say that it was inappropriate to say that entire meetings were confidential advice to ministers and they cannot tell you anything at all. The other organisation I found that did a sort of half-refusal, and we have now gone to the Information Commissioner, was the Office of Government Commerce, where, rather like the situation over money spent on subsidies, we wanted to know the reports on all the computer systems across Whitehall; because there has been a lot of public interest in why these are failing. We wanted to know the gateway: not every single report, because there are about 450 of them, but what the classification was. What we got was that they listed the reports, but banned the classification. They then stuck at this, so that basically the information is useless. There were also ten letters, which again was a rather weird situation, where permanent secretaries across different departments had been told by the OGC, "You have had a double red" - which basically means, "Twice we have realised that the computer scheme you are going to introduce is not going to work". They released the text but they removed the computer scheme, who it was written to, and which department. So, again, you could not use the information. It was a rather subtle way to refuse, saying, "We have agreed to part of your thing but it is not real...", and that at the moment has gone to the Information Commissioner and we are awaiting the result.
Chairman: We will turn to the Commissioner now.
Q108 Julie Morgan: I want to ask you about the Commissioner's performance and, in particular, the backlog of appeals cases. I wonder if you could make some comment about what problems this backlog is causing.
Maurice Frankel: I think that there are two problems. One is the backlog and one is the quality of the notices and the investigations. Obviously if people wait a very long time for decisions to come out, all the way down the line, including the Commissioner's office, their incentive to carry on making use of the Freedom of Information Act goes down quite a lot. In a sense, one could say let us hope the backlog gets sorted out, as long as the decisions are the right decisions. What I am worried about is the quality of the decisions, which I think the tribunal is highlighting in a series of cases. That is worrying. When this enforcement arrangement was introduced I think that people assumed - we certainly assumed - that the tribunal would be there to hold the Commissioner back. In practice, what the tribunal are doing is pushing the Commissioner forward and saying, "No, you have not looked at that carefully enough".
Q109 Chairman: Have there been many tribunal cases to do that with?
Maurice Frankel: There have only been about eight or nine, but that has been the effect. There has been a substantial criticism of the Commissioner's approach in two, and implicit in at least two of the others. It is very noticeable that this is not on sophisticated, difficult issues; this is on stopping the investigation at a very early stage and simply accepting the assurance of an authority, or producing a decision notice that does not set out the thinking properly, or not pursuing an issue to the end and stopping much too early in the examination of the thing. If we had the Scottish system, the Scottish commissioner is not subject to a tribunal: only an appeal to the court on a point of law. If we had that situation, I think that we would be very worried about it, because we have a feedback loop. You can see the Commissioner's decisions now, the most recent ones, reflecting some of what the tribunal has said in earlier decisions; but it is a worrying series of criticisms that have been made by the tribunal.
Q110 Julie Morgan: You are more concerned about that than the backlog, are you?
Maurice Frankel: I am more concerned about that than the backlog. I am concerned about the backlog, because you have two things. You have a lot of unhappy people saying, "What's the point of this Freedom of Information Act if I can't get a decision?" and you have bad practice becoming entrenched, if it is not corrected at a reasonably early stage.
Steve Wood: I think that it is partly the perception which builds up from the backlog in the public authorities themselves. I would say anecdotally, having spoken to some FOI officers at conferences over the last few months, that at senior levels in, say, local councils, a risk analysis was taken when FOI was coming in and they obviously saw the risks of breaching the Act. Now, however, a perception may be building up that the Information Commissioner perhaps lacks the authority to be able to get through these cases quickly, and they may be downgrading their risk analysis to do with what they think the risks from the Act are to them, and therefore they may be moving resources away from managing FOI.
Q111 Chairman: Is there any evidence of that, or is it just a supposition that they might do that?
Steve Wood: Speaking to some FOI officers, I think that is the worry - that resources will be taken away. The FOI officers are very important people in any public authority, because they are the gateway; they are the people who can make the case for how an FOI request should be managed. They are very important people, and that is what I have picked up from their opinions, having spoken to some of them.
David Hencke: The one case, which is the computer case, which I have got to the Commissioner, gives me the feeling that they are not very well organised. The first thing I got was a letter back saying, "We can't look at this for two months". I then made some discreet enquiries, as you would as a journalist, and found that my request about these IT schemes was not too different from a request by a computing magazine which they were looking at, and no one seemed to have cross-referenced or prioritised or thought, "Oh, there's a similarity here. We should look at the two together". So I get a feeling that they need to prioritise what cases they are looking at, and then they might not get into such a backlog. I also rather wonder about the resources that they put aside for this, because there seem to be far more cases coming up to them than they obviously anticipated.
Steve Wood: I would echo the comments made by David. I think that Richard Thomas has called it the triage of the cases when they enter into the office. From the data which I have seen, released from some of the request logs which some people have requested, it seems that there have been different ways of recording quite basic types of data. The MoD has been recorded different ways, as a public authority. It seems to be that, as David was picking up, things are not being drawn together and dealt with in a manner of being prioritised.
Q112 Julie Morgan: The Commissioner told us that he has a recovery plan to deal with the backlog. I wonder if you have seen any changes since this recovery plan has been put into operation, which I think is over the last two or three months.
Steve Wood: In terms of the prioritisation, they have moved towards some more important, perhaps precedent-setting decisions, like the cases over the release of officials' names; cases relating to the release of restaurant inspections, for example. So they have moved on to some of the more important cases, away from the process-centric cases. That has perhaps been one of the big advances in the last few months, and more of those cases seem to be coming up week by week. That would seem to be the advance. However, the backlog is so huge that it is hard to tell how much they are eating into the actual backlog.
Q113 Julie Morgan: Any other comments on this recovery plan?
David Hencke: I have not noticed a lot.
Maurice Frankel: I think that it is too early to see significant progress from the recovery plan. I think that it is too recently implemented.
Q114 Julie Morgan: The Information Commissioner has told us that he had chosen to adopt a relatively tolerant approach during the first year of the implementation, to enable the local authorities and other public bodies to become familiar with the legislation. Do you think that he should have taken a firmer approach in 2006? Do you think that it would be a good idea, longer term, for that to have happened?
Maurice Frankel: I do not think the firmness of the approach is the problem. Organisationally, they look like there have been serious gaps behind the scenes in how cases are managed and handled. The fact is that the Freedom of Information officer is in a rather strange situation. Quite a number of them are very positive about the legislation. When they come to conferences where the Commissioner or the Commissioner's staff are there, I have been very interested to see that they have been asking, "What are the sanctions against us if we don't comply?". The Commissioner's people have sometimes said, "We will be pretty tolerant in the early days" - and they have been disappointed. They have a problem back at home, getting the resources, getting the attention paid, getting this taken seriously. They do not want to come back and say, "The Commissioner is going to be fairly tolerant while we are all learning how to do this". They want to come back and say, "The Commissioner is going to be down on us like a ton of bricks if we don't get this right. Get this right. Put the staff in now. Get the training in now". Although I can understand that, I think that the system looks for some sort of strict enforcement. I accept that when people are acting in good faith but not getting it right, you do not come down on them very hard; but people who are not spotting "This is a Freedom of Information request", people who are sitting on them for weeks and weeks and not answering, people who are not applying the exemptions and public interests properly - I do not think even the authorities, the serious authorities, expect the Commissioner to be baring his teeth actually, and the system requires it.
Q115 Barbara Keeley: There are some questions about the government clearing house which advises on complex requests and the correct application of legislation. Do you think that the information provided about that central government clearing house is sufficient to ensure that the Department for Constitutional Affairs is accountable for the clearing house's activities?
Maurice Frankel: We are kept a bit in the dark about what goes on in the clearing house really. Towards the end of 2004, the clearing house itself published its triggers and its procedures, which I think was very helpful, very illuminating. They are much more cautious about what they release now. My impression is that if they had not released that at the end of 2004, if one asked for it now, we would not get it.
Q116 Chairman: You could do an FOI on the clearing house, could you not?
Maurice Frankel: Yes. I do not think that we would get it.
Q117 Chairman: Public interest?
Maurice Frankel: I am sorry?
Q118 Chairman: If you did an FOI request on the clearing house, what sort of exemption could they use?
Maurice Frankel: I would not be at all surprised to see "prejudice to the effect of conduct of public affairs" being used. This is one of the problems, about how much of that process is in the open and how much is behind the scenes. It is an area of contention between numbers of requesters trying to find out what is going on and the Government that says, "Our process is that, for us, you should just be concerned about the output". I made a request last year for the internal reviews carried out by government departments, for a sample of them, and the correspondence that they had had with the applicants. Nothing private; simply the material that was in the applicants' hands, and I said that I would have that anonymously, without the names. I spoke to the clearing house informally and told them what I was doing, and asked them if it caused them any problem. They said no. Three or four weeks later I started getting my requests refused and discovered that the clearing house had advised departments to refuse to release their internal reviews to me, on the grounds that the information was not held in the form requested. So they were not even using a particular exemption. What I thought was very interesting was that there was no attempt to provide advice and assistance; there was no attempt to explain what was meant by that term. Three government departments ignored it and provided the information to me, and several government departments, led by the Ministry of Defence, formally challenged the DCA over the refusal, on the grounds they did not believe that there were lawful grounds to withhold the information. I think that we are in a very strange situation where the Ministry of Defence - and the Ministry of Defence has been noticeably good under the Act, by the way - is challenging the body responsible for Freedom of Information on the grounds that it is being too secretive. As a result of that, the clearing house revised its guidance and encouraged departments to release the information - after I had made independent challenges to each department. That is symbolic of a problem of a kind going on behind the scenes about responding to these types of enquiries.
Chairman: I think that a member of the Ministry of Defence earned a brownie point by producing rather good posters, one of which appeared on the front of our report, to remind staff of the impending obligations.
Q119 Dr Whitehead: When the Lord Chancellor came before this Committee, he seemed to be somewhat concerned about the extent to which public time and money might be being wasted with frivolous requests. Although he did not suggest that the £600 figure was the wrong figure, he did raise the question of whether further time and money in preparing information might be taken into account within the £600. He suggested that reading and reviewing files time - presumably a differential scale, depending on the seniority of the person reading the file - might be a good idea. What is your view of that?
Maurice Frankel: I think that we would see an immediate crash in the volume of requests receiving replies. Although it would not be putting the fees up, it would be saying that you would have to ask for a very small amount of information in order to get your request through the cost limit, compared to what you ask at the moment. I think that, coming at this early stage in the life of the legislation, it would be a very regrettable step to take. At the moment, we do not want to give public authorities more barriers, better armour to defend themselves against requests. I accept that they are getting a lot of work. Some of these requests are causing them a lot of work. The problem is that the moment you start to say that you will take the costs into account at £25 an hour, I think you will probably find that half of all the requests that are now being answered will be refused on cost grounds. It would be much better to let the system work itself out and leave authorities to try and make themselves more efficient in handling the requests; to learn about the use of exemptions; to learn from the case law that has gone before, so that they can more quickly decide whether they have grounds to withhold or not; to improve their record management; to improve their publications. See how much progress we can make that way, and not erect new barriers, particularly at this early stage when we are just beginning to see the change starting. It is a very, very early stage to make a fundamental change to the charging rate, or the level of requests that are going to be answered.
Steve Wood: I would agree with Maurice's comments there. I think that in moving towards the point of having a fees review and what the Lord Chancellor is proposing, it would be good to see more detailed evidence and analysis of the types of requests which are perhaps causing the problems and causing a larger amount of time than they had perhaps expected to be spent on these requests. We have only had anecdotal evidence so far. I think that it would be much better for a fees review to be a much more open consultation process, because I feel as though there has not been much interaction between the DCA and the users of the Act over this issue. I do not think that we are in a position to move towards making a decision without having looked at a lot more evidence, in terms of making a decision about whether the suggestion the Lord Chancellor has made is the right one.
David Hencke: I was dead against this. To be quite honest, I think that it is rather a weaselly kind of way of making sure new legislation - which I believe is beginning to work and giving, not just journalists but the general public, much more information about the way they are governed and what is going on - is really severely restricted. I imagine that the Cabinet Office would immediately refer to the most senior person possible at £100 an hour so that they can look at it for two minutes, and say, "No, we can't afford this"! I really do think that this is a crafty way to deal with this. Also, it seems to ignore one other important point in the legislation: that if you make vexatious requests which could be considered trivial, continued requests, they are perfectly entitled to write back and say, "No, that's it. We're not looking at this any further". He seems to have forgotten that in his drive. You realise that if he introduced fees, or heavy fees like they have done in Ireland, it would be very unpopular; therefore, he is trying to find some weaselly way round. He may have even picked up from the crafty pressure that is going on from the Inland Revenue over being overrun, I gather, with tax forms. They are trying to argue, I notice in the Public Accounts Committee, for a charge for the taxman's time for looking at your tax return if it is beyond a certain date. You can just see this spreading across government..
Q120 Chairman: Would I be right to assume that, if it was a member of the public, they might be deterred and that The Guardian or certain other newspapers might not be deterred if they had to find some extra money to deal with a request?
Maurice Frankel: Under the scheme we are talking about, you would not be asked to pay more. What you would find is that the amount of information that would be done for you would be sharply reduced, by taking the time into consideration. I do not think that this is the problem to do with frivolous requests. I think that they are two separate things. I think that this is to do with the volume of work that is coming into departments from genuine requests, not frivolous requests. I think that is the perceived problem.
Q121 Dr Whitehead: From Steve Wood's thoughts on this matter, although there is only anecdotal evidence, it does not seem to you that there appears to be a large volume of frivolous requests taking place. As you have pointed out, David Hencke, there is a mechanism which could prevent that taking place. Is there any evidence, in your view, of the mechanism being widely adopted by responding authorities so far?
Maurice Frankel: The Commissioner's decision, his first decision, was upholding a local authority judging that a series of very large requests from one individual over a short period of time were vexatious. I think that will probably signal to authorities that that remedy is available to them. The Government does not get a very good press on human rights, civil liberties issues, particularly with the terrorism legislation and so on. This is one of the two things that it has done - the Human Rights Act and the Freedom of Information Act - that tells the other side of the story. The history of the Freedom of Information Act has been that, as soon as they have made a good proposal, they have attracted bad publicity by going immediately in the wrong direction - a poor draft bill, a long delay in implementing it. I think that they are at the point at which they are beginning to get credit, people are beginning to notice that this Government has done this; it helps the ordinary citizen. People are reading about it every day in their newspapers. I think they are at the point at which the Government itself might actually get some credit for this legislation, and I think that it would be a good idea for them not to get involved in that for the time being and just let the legislation take root.
Q122 Dr Whitehead: I was going to say "a better spin therefore", but perhaps that is a cynical thing to suggest. Steve Wood, you have mentioned in your written evidence that a number of responding authorities appear to be costing the response based on a paper search, where they have electronic records management systems and the cost of searching through a system, therefore, is presumably the cost of moving the finger to the button and divulging the information. Do you have some examples of that problem arising in terms of responses?
Steve Wood: I have not actually appealed any of those cases, but you are really very much in the dark as to what systems are in place. You are told in your response that it would exceed the cost limit to locate and retrieve those files. You very much have either to accept what they say - that it would take that many hours up to the full £50 or the £600 limit - or not. Having worked in the public sector myself, you often know if there is one individual with the knowledge of where those files are located or whether there is an electronic document records management system in place, where they could conduct a search for that information, but you have no real evidence to say that they have even attempted the search for you. It is almost that they give you the response straight back, saying immediately, "Your request is too general" or "It would immediately breach the cost limit". So you are very much in the position of being in the dark. It is very difficult and, until we get a case to go to the Information Commissioner and for him to investigate how they have put together the calculation of the time it would take to locate and retrieve that information, you may not know what is actually happening in those examples.
Q123 Dr Whitehead: Do you have any suggestions or thoughts about how that potential difficulty in judging the real cost of retrieval might be resolved?
Steve Wood: I think that it will be the Information Commissioner stepping in at a very early stage, to check to make sure that a search actually has been attempted on any electronic system, and not to accept an approach which says, "There are lots of paper files that have to be gone through". In some cases that may definitely be true, but it is to make sure that at least the relevant searches have been attempted; and to make sure that that cost calculation is fair.
Maurice Frankel: I think that the authorities should explain how they have calculated the cost and why they think it would take that number of hours. I know that in many cases authorities do a little trial run. They sit down, they get five files out and go through those files and see how much of the information they can get and how long it takes them. I think that people would be impressed if they saw the work that the authorities had done; but when you see what they say to the applicant, they say, "We've calculated that it would cost £600 to find this information", and nothing more. Immediately, the suspicions come to the surface; but sometimes, when you see what they have done, you are quite impressed by what they have done.
Steve Wood: It is in the letter which comes back to the applicant. If it was explained clearly to you about how that time was taken, it would perhaps also stop some of the complaints going to the Information Commissioner.
Q124 Chairman: Is there anything else you want to say on the records management aspect of it? Is this a situation in which the main driver for records management in public bodies ought to be the Commissioner and his response to information requests, or do we have some other mechanisms?
Steve Wood: I think that, on records management, the drivers for that before the Act came in were very much putting retention policies and schedules in place, to make sure that certain types of information were kept for relevant reasons. The obvious other benefit is the efficiency savings which should be developed from having an adequate records management system, in terms of the response time. Most public authorities are still on part of the curve of learning how to use these systems. It is very early days to see where the benefits are emerging.
Chairman: Thank you very much indeed. We are very grateful for your help, and we also read what some of you write on the subject. We will continue our evidence sessions this afternoon, and we will be reporting in due course. Many thanks for your help.
Witnesses: Deputy Chief Constable Ian Readhead, Hampshire Constabulary and Association of Chief Police Officers (ACPO), Chief Inspector Paul Brooks, Hampshire Constabulary, Dr Lydia Pollard, Improvement and Development Agency (IDeA), and Tracy Phillips, Senior Information Manager, Islington Council, gave evidence.
Chairman: Mr Readhead, Dr Pollard, Ms Phillips, Mr Brooks, at least three of you have been with us before the Act and it is interesting to have you back at this stage, to see how it is going on. I will ask Ms Morgan to begin.
Q125 Julie Morgan: Good afternoon. Can you tell us about your experience of the first year since the Act has implemented? Could you give us figures about the number of requests that you have received, how well you feel that you have coped with the demands of the legislation, and what sort of new information has been released?
Tracy Phillips: I am representing the London boroughs, and I am from Islington Council myself. To date, we have had 499; that is up to today. It has been an interesting experience from the very beginning. It was challenging at the beginning, but we are finding it more and more acceptable and that we do want to publish more and more information. It is to our benefit to do that and we are embracing this legislation. It is interesting how it is being used by the public at large, by business and the press. To date, we have had 30 requests from our local press and 130 from national media and private organisations - that is about one-third - and two-thirds which are by the public at large, and quite a few of those were anonymously made, so we did not actually know who they were. The act is applicant-blind anyway. It is quite good. It is about public accountability. They are asking about how our money is being spent. Another of the requests is quite illuminating to ourselves, regarding requests over contracts and how we have arranged to go into business with this contractor, and what is the accountability for that. So it has been a learning curve for us internally as well, because we are more co-ordinated. The departments are not acting in silo; we are a corporate body. We are welcoming the act and our compliance has gone up month-on. So we are 85% compliant in this last month. We have implemented an information governance board, which is being chaired by our Director of Corporate Resources, which is head of law. So it is being received as high-profile within the council itself. That is truly representative of the London boroughs anyway: that it is being embraced now. So it is good from our point of view.
Q126 Julie Morgan: Is there any particular information that has come out that you could tell us about?
Tracy Phillips: The information requests tend to be topical, whatever the subject of the day is within the borough itself. Primarily, the culture change has been in the release of contracts and the publication of that, which was never done in the past. That is the biggest one that I could think of straightaway.
Dr Pollard: My organisation is not covered by the Freedom of Information Act, so the information I will give you really relates to all English local authorities. We did a six-month survey and I will quickly try to do an update on that. Our estimate is that, for the year, the English authorities received something like 70,000 Freedom of Information requests. It was variable from local authority to local authority. We produced a report and in that report it breaks it down in terms of types of authority. Typically, district councils tend to get fewer requests than other types of councils, but there is really not much difference between the other types of councils in terms of the numbers of requests that they get. An overall picture for local authorities is that there is some very positive news that has come out, in that they have embraced the Freedom of Information Act; they are genuinely trying to be more open and responsive to the general public. It has raised information management and records management much higher up the agenda for local authorities. They are valuing their information and thinking much more carefully about how they can make best use of it. That in turn has a very positive knock-on effect for service improvement. There are some very good examples of how local authorities are using the Freedom of Information Act to improve their services. So, on the whole, it is very positive. There is room for improvement always, but it is a very positive impact.
Q127 Chairman: Is the police picture different?
DCC Ian Readhead: The first year has seen just about 21,000 applications being made to the service overall. We are pleased that on 94% of the occasions we have managed to respond within the time-frame set by the legislation and have replied, in full or in part, on 65% of the cases. When we gave evidence to you before, we indicated what our main concerns may be. We were particularly concerned about disenfranchised members of staff making considerable requests to us as employers. In fact that has not proved to be the case: only in exceptional circumstances where forces would appear to have had difficulties with their staff do we see lots of internal applications. Overall, we have tried to indicate in our evidence to you where the main requests come to from our applicants, which are in relation to operational policing matters, and also the way in which we deal with high-profile cases such as Soham. We think that our main difficulties will be around issues such as staff retention. It is very difficult in our organisation to create a culture where you serve two clients. One is the applicant and the other one is the organisation that you work for. That has led to a disproportionate amount of staff turnover and that has impacts for us around training as well. So certainly our future strategy is to try to have an impact upon that area of specific business. Overall, we are relatively pleased with how the first year has gone; but our view is that there is much challenge facing us over the next two years, as I think both the public and the press become much more aware of how this legislation can be used.
CI Paul Brooks: To answer your question about what sort of releases we are doing, requests such as all the Greenham Common files when the nuclear airbase was there - that has all been released to the press via requests. The investigating officer's report into Soham was released. All the anti-apartheid movement back in the 1960s and 1970s was released - there were obviously a lot of high-profile issues around that; and, recently, war crimes. The majority of our chief officers' expenses are now being routinely published on to websites. We have had investigating officer reports for high-profile cases. A considerable amount of ACPO policies, such as fox-hunting - how we are going to deal with fox-hunting since the new legislation - that has all been released, mostly in full. So we are making inroads into quite high profile cases. As Mr Readhead said, 65% roughly is what we are releasing, in full or in part.
Q128 Julie Morgan: What about the problems you have encountered?
Dr Pollard: For local authorities, they have raised the issue of the definition of vexatious or frivolous requests. That has been an issue. I have a very good example which I can leave with you. It is a very recent one. One authority received something like 40 requests within a four‑week period from a single person, all for quite detailed information, all legitimate requests. Nothing wrong with them as individual requests, but it was 40 requests for information within a four-week period. I am sorry, no, actually it is 58 in total.
Q129 Chairman: Fifty-eight?
Dr Pollard: Fifty-eight requests from a single individual in a four-week period. Local authority groups have had discussions with the Information Commissioner and have fairly recently had some guidance about whether you could define this as a frivolous or a vexatious request. Previously, they had not been defining this as a vexatious or a frivolous request; they had been trying to deal with these requests as they come in. The other thing that they had not been doing, because they were not aware that they could do this, was adding up the time spent on these requests, because they are individual requests and not necessarily about the same thing. So they did not feel that they could add up the time spent. So each request has been dealt with individually, and that has taken up a considerable amount of time. The other issue for local authorities is requests from businesses. There is a concern that businesses are using the Freedom of Information to get information that will help them then sell their services, or help them to make commercial gain. There is concern about whether that was what was intended within the spirit of the Act. I have another example here, where they were asked to provide information in terms of a web-based survey which went to the vast majority of English authorities and they were asked to complete this online survey.
Q130 Chairman: You mean a survey document was sent out to lots of local authorities, but as an FOI request?
Dr Pollard: Yes, and they were asking for information by means of a survey. Again, the Information Commissioner has recently given guidance that, if those types of requests come in, they do not need to treat them ----
Q131 Chairman: I am sorry. Did you say the Information Commissioner gave or could have given?
Dr Pollard: No, they have very recently given guidance to say that those requests need not be treated as FOI requests; but it is those kinds of issues that have been worrying them in terms of dealing with the requests. It is obviously the resource issue and how we fund all this, which is a problem for a number of authorities - but we reported on that last time.
Tracy Phillips: Can I add to that from a local authority perspective? We are very much on our own in terms of consistency. We rely on networks and regional groups to deal consistently with round-robin requests, to ensure that the response that is given is one where we should all be providing the same responses. The responses for an empty property request, for example. If we are going to disclose, we should all disclose; but we are reliant upon networks of expertise within the individual local governments to contact each other and say, "We have got this request. This is how we are going to respond". We do not have a clearing house where we could go and seek advice; we are reliant upon our own individual networks. That is a major factor for local governments. There is no resource given. There is certainly no hierarchy of support and guidance given to local government bodies, and that is a major factor for local government.
Q132 Keith Vaz: How many of the requests to the police relate to information that you simply do not have? People writing in and saying, "Can I have my file?", for example, and you do not have that file and you do not have this information?
CI Paul Brooks: About 9% were where we do not actually hold the information.
Q133 Keith Vaz: When you reply to them and tell them, what is their reaction? Does anyone think that you are not being ----
CI Paul Brooks: There are a lot of people, obviously, who think it is a conspiracy and that we are actually not following that, or they do not believe us; but we can only say that we do not hold the information - it is our belief. We do get some of those, but it is not that prevalent.
Q134 Keith Vaz: Remind me - you may have told us this on the last occasion when you came to the other Committee - how long do you hold your files? Does it vary according to a police authority, or is there a standard?
DCC Ian Readhead: It really depends what you are talking about, sir. Legislation allows the Police Service to keep criminal convictions now for life, or for 100 years. So you have that at one end of the spectrum. Most other police files around information are kept up to about seven years; but there are different grades and categories. So if you take a murder investigation that has perhaps not resulted in any prosecution or arrest, that may be kept longer as an active crime investigation and, you will know, cold case reviews now are actually detecting crimes that were committed 20 years ago, through the developments of forensic science.
Q135 Keith Vaz: We have all seen the television programmes about this. Do you feel that there should be a standard practice throughout all the Police Service that files should be kept for a certain period of time? It sounds as if different things are happening in different parts of the country. You have a police reorganisation going on, where it is quite possible that, as we merge these various police forces - whether or not people are in favour of it - files will go missing as the filing cabinets are transferred.
DCC Ian Readhead: I think that there are two questions there. The first is do you want consistency in standards across the Police Service with regard to how we retain information? The answer is yes. Post the review by Sir Michael Bichard, there is now the management of police information which is setting those standards for how long we retain information. The second issue is about how you actually have governance processes and retain information. Most forces are now either committing much of their historical filing to computer records or they have other central repositories as to where they hold information, in accordance with best standards. I think that overall the service is getting much better at this area of business.
Q136 Keith Vaz: To your knowledge, have you produced any leaflets advising the public of what they can and cannot find, in terms of applications under the FOI?
CI Paul Brooks: We have actually done a public-facing manual, which is on the ACPO website and which basically goes through issues of what you can approach for, what you can get, and how to apply.
Q137 Keith Vaz: But not many people would necessarily wake up in the morning and go on the ACPO website, would they?
CI Paul Brooks: No.
Q138 Keith Vaz: Has anything been produced that, for example, goes to local law centres or Citizens Advice Bureaux?
DCC Ian Readhead: I am not aware that we have done anything specifically in that, sir.
Q139 Keith Vaz: So you have basically left it to the public to find out where they can get hold of this information and they write in? If you issued leaflets, your workload would presumably double, would it not?
CI Paul Brooks: It would increase considerably. What we try to do, and we do this with all requests, is that there will be items we have that we would not release and where we would fight release, such as some parts of criminal investigations, because we hold so much personal data. We try and lower their expectations, but also when we get requests we do phone and advise them, "You can have this", and we try and work with them. FOI officers are very keen to do that. But we have not actually put out leaflets saying, "You can go for that" - mainly because, my personal belief is, we do not have the staff, and the cost of that would have a very big impact. I think that in our evidence we have stated the first year has cost around £7 million for the service, and that is just answering requests, but it does not include the time to publicise things, put things on publication schemes - which is a problem to the service.
Q140 Dr Whitehead: All of you to some extent have addressed this question but, when you last gave evidence to the Committee, or rather when three of you gave evidence to the Committee, really before matters had started, you did raise concerns about whether authorities in your sector would adopt different approaches, I think particularly concerning the police. For example, whether some authorities might answer in a different way to others and therefore would be subject to, as it were, people then reprising their requests to other authorities to try to tease things out. Has that actually happened, in terms of the first year's experience?
DCC Ian Readhead: Certainly from the Police Service, yes, there has. What we have done is additional training to try to get consistency across the service as to the way in which exemptions are used, so that everybody is using the Act with some consistency. We think that has certainly had some harvest in relation to ensuring that the service, in its outward-looking response to the public, is doing things with some conformity. I think that I have said before that it would be absurd, would it not, if one applicant writes to Dorset and gets one kind of response, but writes to Hampshire and gets another one? Certainly we are really keen to enhance the capability of the service to be able professionally to respond in that arena.
CI Paul Brooks: Certainly we have seen across the services where a requester will - we have had experience in the first few months - apply to 15 police forces, asking the same questions, making sure that each police force never touched each other's border; then, 20 days later, asked another 15, and carried on in that way. The Central Referral Process that we have set up will try to answer and gain ACPO advice, because ACPO works in a way that the deputy chief constable or the chief constable of one force will give advice to all forces. Therefore that is what we do. We go to that ACPO lead and then advise all forces, "This is what the ACPO lead says". It has been surprising that, even with that method, reporters will ask one force, get a response, and then will shove it through to six or seven forces and say, "Here is a precedent you must follow". That happens quite regularly, but the Central Referral Process does actually pick quite a lot of that up. The thing we are showing is that a number of forces do not want to release material, but the ACPO lead is saying, "No, release it". We generally give guidance saying, "No, let that go" and we do push people. There is more pushing people to release than not to release.
DCC Ian Readhead: My final concern would be that some of my colleagues at chief constable level, as we have said in our evidence, still have not been open about their expenses. That really worries me.
Q141 Chairman: They have not been able to...?
DCC Ian Readhead: They have not been open. They have not published their expenses. That sets a tone for the force. Clearly, against that backdrop, in that particular area, you wonder about the difficulties for the officer who has been positioned to deal with FOI issues being as open as perhaps they would want to be. I hope that in the next 12 months you see that position rectified.
Q142 Keith Vaz: But if they do not publish their expenses and someone puts in an application, they have to be published, do they not?
DCC Ian Readhead: That is correct, sir.
Q143 Chairman: It would take an appeal to the Commissioner to enforce it, if they do not listen to you.
DCC Ian Readhead: That is correct, sir.
CI Paul Brooks: The Commissioner is of the opinion, every time we have an appeal to the Commissioner, they will automatically search to see if any other police force has released it in the first place and, if they have, that gets sent straight back, saying why you should be releasing it.
Q144 Dr Whitehead: What about consistency of response from local authorities? You mentioned, Ms Phillips, that to some extent it is an issue of networking in terms of providing that consistency.
Tracy Phillips: That is absolutely how it is. It is a matter of networking with every other FOI practitioner within local authorities, to see how they are answering a response and whether it is a consistent response approach. We are left to our own devices. There is no one there, providing support for us.
Q145 Dr Whitehead: You would appreciate, perhaps, a system more akin to the method the police are adopting?
Tracy Phillips: Yes, very much so.
Lydia Pollard: But there are no resources available to provide that service. There is some evidence. I think in the environmental health reports there was some inconsistency certainly in what was disclosed. It is really the interpretation of exemptions that causes the issues. Different authorities will interpret them differently and that will lead to discussions about how they have been interpreted, but, until there is some case-law established, tribunal cases coming out and decision notices about it, it is likely to continue.
Q146 Dr Whitehead: Have you noticed any evidence of the sort of precedent-setting inquiries of particular authorities that we have heard mentioned this afternoon, which in the case of the police have been to some extent tempered by discussions between forces but perhaps less so as far as local authorities are concerned?
Lydia Pollard: It is less so as far as local authorities are concerned because there is no one organisation in charge of them, they are very much independent, and so it is very much informal agreements. The London authorities have an FOI group and they will take requests that are of concern and they will discuss with others and ask advice about how to handle it and there will be some consensus there. Similarly, there are other local networks that do that, but there is no national network that does that, and so you are likely to feel, although I have not necessarily seen this, that different areas could take a different response.
Q147 Dr Whitehead: Turning to the length of time for a response, we have heard already this afternoon, and on other occasions, that some requests have been subject to lengthy delays. I think this is particularly a question I would direct to Dr Pollard. Have those sorts of delays occurred within local authorities and to what extent, if those delays have occurred, do you think the public interest test has been applied by those people thinking about how quickly to respond to requests?
Lydia Pollard: There have been delays on requests. I am not aware that they have been huge delays. Obviously, on certain individual ones there have been long delays, but, on the whole, I think that there have been relatively few delays. Part of the reason has been the public interest test. There have been some problems, particularly in small authorities, with procedural aspects. In fact, a number of the ones that went to the Information Commissioner were concerned with procedural aspects. They just did not realise what they were supposed to do and people had sat on them and perhaps not responded as quickly. One of the big issues is just finding the information. Local authorities are still working on records management, the vast majority still do not have a corporate records management system, they have a mix, and finding information in a manual system takes a considerable amount of time.
Q148 Dr Whitehead: Has the fact that you have a better system in the police force, one might say, of comparing requests meant an overall lengthening in the time taken to respond, or has it made the procedure of responding more effective, in your view?
DCC Ian Readhead: We have been relatively pleased with the compliance with the time-frames, but the emphasis we have always said is: if you are going to be somewhat longer, it is better to have a quantitative answer than one that you rush through and then you do not comply with the legislation or which you could potentially prejudice because you have not redacted the documents correctly. Clearly, there are some complicated matters which we deal with, but what we have attempted to do using best practice is to keep the applicant well informed about why the delay is occurring, giving clear time-frames as to when you expect the document to be fully released, but overall, 94% of the time we are within the time-frames, and we are pleased with that.
Q149 Chairman: We have received evidence that in the Commissioner's Office there has had to be some transfer of staff from the guidance and management functions, and possibly even some of the other general work, into dealing with cases due to the backlog. Have you noticed an effect from that or have you been reasonably comfortable with the quality of decision notices and the guidance that has been issued?
Lydia Pollard: I think local authorities have noticed that. Under the Data Protection Act local authorities were able to go and ask the Information Commissioner's Office for advice about how to deal with a particular request, and they would get informal advice, which usually they would take notice of, about how to deal with something of which they were not quite sure. When they have done the same under Freedom of Information they have not received that informal guidance. They have been advised, but the Information Commissioner's Office was not able to give that because it might prejudice a complaint.
Q150 Chairman: They are given a theoretical reason rather than saying, "We are too busy at the moment"?
Lydia Pollard: Yes, they have been given that reason, and the guidance has been slow to come out. There has been a meeting between Defra and the Information Commissioner's Office and local authorities about joining up the guidance for FOI and EIR, but we are still waiting for some definitive statements which were requested back in January - they were requested before that but they were formally requested in January - and so the information that is coming out is quite slow. The information about how to deal with vexatious requests has been very slow in coming out. That only came out in January again, so we have gone a whole year, so it has taken time.
DCC Ian Readhead: I think our relationship with the Information Commissioner has perhaps been more positive than that. It would be fair to record that we have received significant support from Richard Thomas and his staff over the last year. I think the difficulty is in the area of appeals. Twenty-seven appeals went to the Information Commissioner's Office in 2005. Only ten of those have actually received adjudication. The oldest one goes back to March 2005 concerning registered sex offenders, so I would suspect it is in that particular area that we would say the Information Commissioner has his greatest challenge.
Q151 Chairman: You are more concerned about the backlog than the secondary effective attempts to deal with it?
DCC Ian Readhead: Yes.
Q152 Chairman: Thank you very much. We are very grateful to you for coming to give evidence this afternoon. Parliament is often told that it ought to look at the effects of legislation, not just the making and framing of it. We would like to have had you along at both stages of the process. Thank you very much.
Witnesses: Natalie Ceeney, Chief Executive, Dr David Thomas, Director of Collections and Technology, and Susan Healy, Head of Information, Policy and Legislation, National Archives, gave evidence.
Chairman: Ms Ceeney, Dr Thomas, and Ms Healy from National Archives, we are very glad to have you with us. Obviously some of you have heard what has been going on before, but we want to look particularly at the National Archive's perspective as holders of a lot of the documentation, but by no means all of it, on these matters.
Q153 Dr Whitehead: Good afternoon. What impact has the Act had so far on the National Archives?
Natalie Ceeney: We have probably got a slightly different experience from many organisations, in that, I suppose, our core role is to be an information provider; so the key impact it has had on us is allowing us to provide far more of the information we have got to our users. To give some statistics, at the beginning of the year, prior to FOI, we had 300,000 closed requests, at this point we have got 200,000, and so it has enabled us to reduce by a third the amount of closed items within National Archives. We have also embedded FOI within all our processes, so users can search our catalogues and get pretty seamless access to a choice of open records or to request, under FOI, closed records; so it has enabled us to widen the access to the material we hold.
Q154 Dr Whitehead: That has been done without significant hiccups, shall we say, as far as you are concerned?
Natalie Ceeney: Absolutely. Because our role is as an information provider, we perhaps could anticipate what FOI would be more easily than some other bodies. Also, because we anticipated quite high volumes of requests, we did a lot of preparation, both internally and working with other government departments, because we anticipated we would get quite a lot of requests. So we were ready on the first day of the Act and, in fact, we prepared, by working with government departments, to release on the first day of the Act 50,000 records so that we could herald in the new Act on an open basis.
Q155 Dr Whitehead: You have anticipated my next question. From your written evidence we note that you received about 5,000 requests during 2005, and your answering rate was rather similar to Albanian election results in the 1960s. You answered 98 % of those within the statutory deadlines. How did you manage to achieve what I think everyone would say is an impressive compliance rate? Do you have information you might pass on to other government departments about that example?
Natalie Ceeney: I think we are in an easier position than many government departments because virtually all of our staff have a core role as an information provider. What we did prior to the Act's introduction was to train every single member of staff in the National Archives so that every member of staff could recognise an FOI request when they saw it. Also, because we are very used to dealing with requests for information, it was perhaps easier to add in this extra volume. We also created a dedicated FOI team, again using information expertise we have within the organisation, and so we have got a pretty strong team who understand information provision and the law extremely well. We have been very pleased at how well we have done. In terms of a device for other departments, it is, I think, quite hard to generalise from our experience. Of course, our key role is as an information provider. Other government departments' key role is policy, delivery or both and the rigor we have been through of training all our staff is not going to be practical in other departments. One lesson I would say to other departments is: records management is key, and I think that has been a theme that has come up in your session so far.
Q156 Dr Whitehead: Electronic records management?
Natalie Ceeney: Electronic records management is key.
Q157 Chairman: You have a formal role in promoting good records management?
Natalie Ceeney: We do.
Q158 Chairman: Yet, of course, and it is one of the issues that have come up in the previous evidence session and in others, not only is there a general problem but it impinges directly upon operating the Freedom of Information Act?
Natalie Ceeney: Absolutely.
Q159 Chairman: What more do you think you could be doing?
Natalie Ceeney: Our role at the National Archives is to promote good electronic records management standards. It is really every government department and every public body's role to make sure they do look after their records management well. We train records management practitioners, we put out a lot of guidance on the importance of records management as well as how to do it. We work with suppliers to make sure that there are systems out there which can do the job, although, I would stress, it is a pretty immature technology market at the moment. We also work to promote the importance of records management at quite senior levels within government. I think FOI has helped. As you have heard from other people, FOI has brought home the importance of good electronic management systems. We are continuing to plug away, but I think the message has to come from all angles and not just from National Archives.
Q160 Chairman: The Information Commissioner has told us that his office has met with difficulties when there are disputes about whether or not the authority holds the information that someone is asking for. Is that an area where you can give more advice, and who really could be involved in challenging the response: "Oh, we do not have that kind of information"?
Natalie Ceeney: Can I ask my colleague Susan to answer that one?
Susan Healy: We have issued guidance on the disposal of records and the importance of documenting the disposal of records, and we have talked to the Information Commissioner about this as a particular issue with a view to our coming up with more guidance which would perhaps get to the bodies which do not necessarily have qualified record managers on the staff because, perhaps, they are smaller. We are about to issue a new series of guidance, which is aimed at smaller organisations and which will be expressed in user-friendly fashion, explaining what it is about geared to the records management code, and we are hoping, in this way, we can bring home to the smaller organisations the fundamental things that they can do, without necessarily being too expensive, which will help them get over this problem. One of the things which we do is encourage them to know what records they have, know what they keep, for how long they keep it and what gets destroyed when, and we hope that will get around this problem which the Commissioner encounters in organisations saying, "We do not have this information", and we do not know why they do not have it and we do not know when they stopped having it.
Q161 Chairman: Do you think you should be sent in, like the Flying Squad, to have a look where the authority cannot produce a documented record or has destroyed the document?
Natalie Ceeney: That is an area we have discussed with the Information Commissioner about using our expertise to help. We have tended to take the approach more of a consultative rather than an enforcement body, because I think what authorities tend to need is help and guidance rather than necessarily a sort of hit squad. We do that informally already with a lot of bodies and we have talked with the Information Commissioner about playing a more strategic role in helping bodies as required.
Q162 Chairman: That may help for the future, but it does not help them to resolve a difficult case where there is no certainty or proof that that document or class of document is not still being held?
Susan Healy: What you are looking at is balance of probability. Is it plausible, is it credible when the organisation says that it knows it had these records once but they do not exist any more? What the Commissioner can do, and is already doing, is to look to see what is the pattern of records management for the organisation? Have they got processes in place which make a credible claim that this information was destroyed at an agreed date? You have to look at the question of whether or not there were records destroyed in an orderly fashion as part of a whole package of records management organisation.
Q163 Chairman: There has been a huge change. Vast amounts of data which used to be on paper are now held in electronic form. We are moving into a period where only relatively recent events can be traced by electronic records, and you have expressed concern that a lot of information that is not provided might simply disappear completely over a relatively short timescale, the next six or seven years, simply because the mechanism by which it is held is not as robust as traditional paper. Where do we go on this one?
Natalie Ceeney: Maybe I should say a little bit about the issue and what we need to do to tackle it. The big challenge is that managing electronic just is not the same as managing paper. What everybody is used to in record management terms is you create a record, you create a paper file, you put it on a shelf and it can pretty much last for a couple of hundred years if you do not do anything particularly dire to it. In an electronic format the chances of us opening a document that is more than five to seven years old and reading it and the format being intelligible, let alone your computer being able to read the floppy disc, is quite low unless you take active steps. That is a pretty new concept. The other thing that is new around it is the technology itself. There are no off-the-shelf digital preservation solutions out there to buy at the moment. We are not only talking about new practice, we are talking about completely new technology. What are we doing about that? Essentially consortiums of libraries and archives across the world, of which we are a key player, are working on the principles for digital preservation. We are ourselves at National Archives spending seven million pounds over the next couple of years to build a digital preservation system, because we have to take the lead, and we work with other archives and libraries to make sure the standards are right. What we are also trying to do is to generate interest amongst suppliers so that off-the-shelf solutions do become available. What we are also doing is sharing that information across government to make sure that the awareness of, first of all, the issue of digital preservation and, secondly, our experience of the technology gets shared so that we do not hit the crisis point that we are describing. The short answer is, if we do nothing, we are going to have a crisis, but the National Archives is working pretty hard to make sure that we do not do that.
Q164 Chairman: At the moment there is no answer out there. It is not that departments are failing to do what you think they should do. They are waiting to be told what to do?
Natalie Ceeney: That is absolutely right.
Q165 Dr Whitehead: Does this mean that when it is being universally advocated that electronic records keeping is a good thing for authorities in general and, indeed, we have heard in earlier evidence that this might, for example, be making more information available quicker and at less cost than a search through the paper files, the down side of that is that there could be very substantial costs down the line for, presumably, transferring all the records, as is the mechanism at the moment, to whatever the latest form of digital retrieval is when the time comes and that, therefore, the overall cost might not be that much different in the end than keeping the stuff in a box in a file?
Natalie Ceeney: There are a number of points there. The first thing to say is that under any records management system what is important (and I think this was illustrated by the police team earlier talking about disposal schedules) is that not everything is kept forever. Typically, for example, the National Archives take about 5% of government files, so at every stage you would expect reading down, so what would transfer to a preservation system would not be everything; it would be a small volume. The second thing is the costs are going to be much more effective if we share technology. We simply do not know at this point what it is your preservation system across government would cost. It is inevitable that the cost will be far lower than it is going to cost now for us to build something. Regarding the economics long-term, essentially we are contrasting paper warehouses with staff and a large space, sometimes in Central London, with a big box of software, which we simply do not know the cost of. At today's cost, probably digital preservation is more expensive. In ten years it could be the reverse. It could be that a big box less than the size of this room could hold information that previously massive warehouses across London would have held, and a lot cheaper. We simply do not know. What we do know is that we have got so much electronic information we simply have no choice than to build a digital preservation mechanism to store it at the end.
Q166 Dr Whitehead: I was thinking in terms of the point that the witness made to us earlier today about the fact that a request could be refused or regarded as difficult to meet on costs grounds, because of an estimate of the paper trail research that would be required, when in fact information stored electronically could be retrieved at the press of a button. The suggestion here appears to be that actually it is not quite as cheap and straightforward as all that and that perhaps, if one took into account the down-the-line costs of the different forms of record keeping, maybe that calculation would not come out quite as positive as might be suggested?
Natalie Ceeney: I think that is a fair assessment. The economics of electronic verses paper are also very different costs at very different stages. People have talked about electronic records management as being cheaper. It is at the point of retrieval, but electronic records management processing systems cost money in a way that maybe creating files in a paper office does not. It is a different way of charging the costs. However, I would say electronic records management with digital preservation backing it up does make access to information far faster and far more reliable in terms of being able to know what you have got and how to find it and get it quickly.
Q167 Chairman: Can I ask you about one other thing which the Committee and individual members get representations about, and that is the issue of releasing census information. Of course there is a policy decision, which I do not particularly want to go into, about what view the Government takes about the conditions that are supposed to apply to censuses and what the effect on confidentiality would be. It is not about that I wanted to ask you, it is the practical implications for National Archive if, for example, the Government were to decide this year that the 1911 census ought to be released before the 100-year date or, indeed, that any other census should be accelerated. What can you tell us about that?
Natalie Ceeney: The issue with the 1911 census is that it is a pretty huge document and it is not yet digitised or microfilmed. Our approach for census information has been, given its huge potential popularity to anyone doing family history research or local history research, to digitise it. We have plans in place to digitise it in the same way we did with the 1901 census. To give an example of why we think this is so important, looking back at the 1901 census, the ratio of people using it on-line verses on site is one hundred to one, and so we know that if we can digitise the census it is going to be immensely popular. The problem is that digitisation takes time and costs money. Our approach is to find commercial suppliers, as we did with 1901, who would take the commercial risk of digitisation, which is going to be hugely expensive, in return for essentially being able to release it to a wide audience, and it is also going to take a process of three to four years. If policy were to change or the Information Commissioner were to deem it reasonable under FOI, the practicality is that it is very unlikely we would find a commercial supplier willing to take it and to digitise it while at the same time answering FOI requests, but also it would mean access to the few rather than the many, because we would have to stop digitisation in order to let anyone who wanted to walk on site see it, which would stop us doing the digitisation. The other thing to stress is that it is a paper document, and therefore, by its nature (almost 100 years old) is pretty fragile. It is fine for digitising. When people are going to leaf through it every day, actually it will quite quickly deteriorate. Our view is the best way of getting people access to is to allow us the time to digitise it and make it freely available to everybody.
Chairman: Thank you very much. We are glad to have that view on the record. We are grateful to you for your help this afternoon. That concludes our formal session.