UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 96-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

Post-legislative scrutiny of

the Freedom of Information Act 2000

Tuesday 15 May 2012

Roger Gough, Edward Hammond, Tracy Phillips and James Rogers

Glenn Preston, Pam Teare, Marion Furr, Brendan Walsh and Roger Smethurst

Evidence heard in Public Questions 386 - 482

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Oral Evidence

Taken before the Justice Committee

on Tuesday 15 May 2012

Members present:

Sir Alan Beith (Chair)

Steve Brine

Jeremy Corbyn

Nick de Bois

Ben Gummer

Mr Elfyn Llwyd

Elizabeth Truss

________________

Examination of Witnesses

Witnesses: Roger Gough, Cabinet Member for Business Strategy and Support, Kent County Council, Edward Hammond, Research and Information Manager, Centre for Public Scrutiny, Tracy Phillips, Information Compliance Advisor (Solicitor), Lambeth Council, and James Rogers, Assistant Chief Executive, Leeds City Council, gave evidence.

Chair: Welcome everyone. Thank you very much for coming in to help us this morning. We have Roger Gough, Cabinet Member for Business Strategy and Support, Kent County Council; Edward Hammond, Research and Information Manager, Centre for Public Scrutiny; Tracy Phillips, Information Compliance Advisor, Lambeth Council; and James Rogers, Assistant Chief Executive Officer at Leeds City Council. We are very glad to have your help this morning in our post-legislative review of the Freedom of Information Act. I am going to ask Steve Brine if he will open the questioning.

Q386 Steve Brine: Good morning and thank you very much for coming. Has the Freedom of Information Act achieved its objectives of openness in local government? It is a simple one to start with. I will start at the top with Mr Gough.

Roger Gough: I think it has achieved at least a degree of that objective. It has been a force for openness and I think that is positive. If you go through some of the general aims and objectives at the time of its introduction, then I think it is a mixed bag. Here I am very much in agreement with the report that the Constitution Unit did. That was very much on the money in the sense that I do not think it has achieved all of what was hoped for and I do not think it has had the feared impact either. If you take the argument about the "chilling effect", you can point to one or two examples of that, but I do not think there has been a general impact of that kind. It has boosted openness and makes people think quite carefully about how things will look in the cold light of day. That is positive. On the other hand, has it enhanced decision making? Has it enhanced public participation? Has it enhanced trust? No. In fact I suspect on the latter, it has probably been a mild negative. So it is a mixed bag, but, in terms of your initial question, yes, I think it has had on the whole a positive impact in that direction.

Q387 Steve Brine: As this is the basis for this part of the inquiry, it is probably fair to ask everybody to answer that question.

Edward Hammond: I tend to agree with that, certainly up to a point. It is quite difficult to disaggregate the effects of the Freedom of Information Act from wider developments in transparency in the public sector and local government in particular, especially in the last few years. One of the reasons why it might not have had the effects that it might have done is because public authorities-local authorities in particular-have viewed it more as a compliance issue, complying with the terms of the Act, complying with the requirement to publish publication schemes and respond to requests, rather than seeing it as a challenge to open up more generally to develop a culture of increased transparency.

Tracy Phillips: Following on from Edward, I do think it has had a positive effect. Local authorities are using it as a driver to drive through transparency agendas. Far more information is being put out there in the public domain through our websites because of the interrogation and analyses from the Freedom of Information Act requests that we are receiving and what the public want to see. So I think it has had a positive effect.

Q388 Steve Brine: To be clear, is that being proactive and taking a judgment as to what you will be asked based on the patterns of questions being submitted and then you are just putting it out there?

Tracy Phillips: Yes, absolutely. We are trying to be proactive in what we are doing and what the public want to see, based on what is being asked.

James Rogers: Without repeating everything that has already been said, I would summarise: yes, to a degree. Many local authorities have had an openness and transparent agenda for years. We had a voluntary FOI policy for a number of years before the actual Act. The Act has promoted that because it was probably not that well known that people could ask for the type of information that they have been asking for. There are some flaws and issues, and they will come out in the questions that follow.

Q389 Steve Brine: How much of a financial burden is it on you as an authority? Presumably Leeds city council is not awash with money right now and you will have to make efficiency service changes.

James Rogers: I do not think any local authority is awash with money at present, with the reductions we have seen. It is a burden. To give you a feel for the scope, in 2010-11 we received 1,200 requests. In 2011-12 that increased to 1,900. If it continues on that trajectory, then it continues to be an increasing and significant burden. The greater burden is sometimes the nature of the requests that we receive in terms of the depth of information that is sought and where we necessarily cannot take into the time limits some of the exemption considerations that we need to have.

Q390 Steve Brine: Give us an example of the ballpark and what we are talking about. What are the most commonly requested things for your authority?

James Rogers: The most common ones out of that number are fairly straightforward. They are for specific issues around, maybe, a contract that we have let, salaries that we pay, expenses or a particular planning application. The majority are for specific matters. You then get the ones that ask for, say, the contents of a whole file or database. Those cause us more of a challenge in how we respond to them, particularly when they are not necessarily subject or issue-specific. The ICO takes the view that we still need to consider those. We are then required to consider the level of data in the database, which might contain thousands of records, to determine which of those records are exempt, but we can’t count that towards the time limit, which then creates a big burden for us.

Q391 Steve Brine: Finally, Mr Hammond, I know you work supporting backbench councillors who are on OSCs-overview and scrutiny committees. How much knowledge do you think there is among your regular rank and file councillors of this Act, what it is meant to do, and what can and cannot be requested under it?

Edward Hammond: I think there is probably quite wide knowledge. I would imagine that councillors will come into contact with issues relating to public information regularly. I do not know to what extent councillors will use the Freedom of Information Act themselves because they won’t need to. Of course, by law, they have rights to information in a way that members of the public might not. They can go directly to officers and request things. I am not really aware of any particular examples of backbench councillors using FOI either in their ward role or indeed to access information through overview and scrutiny committees, although there are a couple; there are two or three, but I would say that they are extremely rare. It is highly unusual for councillors to have to use those legal techniques to acquire information from their own authorities.

Q392 Chair: Does proactive publication, as is sometimes suggested, provide a means of saving money on actual FOI requests? You can simply say to the applicant, "That information is already available. Here is the link to the website."

Edward Hammond: Yes; it has the potential to do that. It depends on how you go about that publication. The Information Commissioner has often said, "You should adopt that approach to your publication scheme of incrementally adding issues and documents to it as requests come in." Again, that could be regarded as being slightly reactive. A proper proactive approach to publication will involve a far wider approach to opening up decision making more generally, involving the public, local people and local groups in the decision-making process and being prepared to publish information that might be in draft form. It is involving people in the way that decisions are made in that way rather than necessarily publishing documents once they are in their finished, complete form.

Roger Gough: I would like to add something to that. We have been adding quite a lot to our website. To go back to a question that was asked earlier, compliance with the Act and boosting a culture of transparency internally reinforce each other. There is a recognition, for instance, that it does make sense to do exactly what you have described. We are doing that and we will do more of it. I do not think, particularly initially, it will necessarily reduce your number of FOI requests. People will probably very often still find it easier to put in the FOI request than go looking, but it is obviously quicker for us to say, "Here is the URL; go and have a look at it", than to dig out the information. Yes, over time that can help, but that is talking about something much wider than the existing publication scheme. I notice many of your respondents commented that it was a fairly antiquated business. That was something that many of us felt.

Q393 Chair: Does anybody else want to add anything to that?

Tracy Phillips: I would like to add that publishing more information on our websites takes extra resource internally within service areas to decide what information they are going to publicise and also why that information might be useful. We have the agenda going forward to publicise more open data-raw data-so that it can be interrogated. That is going to take some resource internally but it will be for the better. I do envisage FOI requests coming on the back of that.

Q394 Chair: One of you suggested in evidence that the Information Commissioner’s Office could give more help to public authorities in developing transparency programmes.

Tracy Phillips: It is quite broad ranging in terms of what they say should go in the publication scheme, but if they could be a bit more prescriptive on defining specific information, that would help us somewhat.

Edward Hammond: The difficulty for local authorities is that they are receiving injunctions from various different parts of Government to respond in different ways to requests for public information. You obviously have the FOI regime. You then have not quite a legal requirement, but as near as, by the Department for Communities and Local Government to publish expenditure information above £500. You also have the wider transparency agenda being led by the Cabinet Office. Individual other Government Departments require certain information to be published in certain ways as well.

That approach is not especially joined up. Although there is an increased drive for transparency coming from central Government, it is not-certainly in my perception-a particularly coherent drive. There are different drivers coming from different directions. It makes it very difficult for local authorities to respond in anything other than a reactive way.

Q395 Chair: Mr Gough mentioned earlier the effect on what local authorities actually do. Has the practice of recording decision-making processes improved as a consequence of the Act?

Roger Gough: I have not seen any evidence that it has improved. I have not seen any great evidence that it has deteriorated either. Here, I am speaking more speculatively than saying anything directly about my own authority. Again, looking at some of your submissions and the discussions on this, there is the empty archives phenomenon from Sweden. I do not think we have seen that, but I am sure people have always to some extent been careful about keeping, if you like, some of the politics out of what is recorded as a decision. To some extent that has probably always been the case. It is probably more in terms of what is published and put out there rather than what is recorded where it has had an impact.

Q396 Chair: There is rather a difference, isn’t there, between local government and central Government? The instinct of the local government officer is to keep the politics out of it and let the politicians argue in their own separate context but then record what is non-political and local authority-based.

Roger Gough: Yes, but that has always been the case. Again, if you look nationally, you would have Cabinet minutes that discussed some elements of the politics of it, but those are treated as somewhat separate items when it comes to freedom of information nationally. As I say, you would see more care probably exercised by people in when they might use the phone rather than an e-mail or something like that. When it comes to actual formal recording of decisions, I do not think there is any difference.

Q397 Chair: Have any of you had any experience of applying the public interest test?

Tracy Phillips: Yes; we have applied it. I have to be honest that applying the public interest test is quite bog standard. You use a templated response because it is generally the same public interest test that you are applying for the same exemption as commercial interest. It is not used very often, but when it is used, it is the same response.

Q398 Chair: Can you give us any indication of the sort of circumstances in which you have had to use it?

Tracy Phillips: It is generally the losing bidder who wants information on the winning tenderer. That is bog standard and I am sure everybody gets the same.

Q399 Chair: It is commercial confidentiality.

Tracy Phillips: Absolutely, yes.

Q400 Jeremy Corbyn: How often does this come up with planning application issues in local government where you get competing developers?

Tracy Phillips: The planning files are generally in the public domain anyway for people to go and view manually. It generally does not apply with planning applications. Even now we are getting requests for pre-planning advice, which the developers pay for. That is now becoming more and more publicised, where it is requested.

Q401 Jeremy Corbyn: What do you mean by "the developers pay for it"?

Tracy Phillips: The developers pay for pre-planning advice.

Q402 Jeremy Corbyn: From the council?

Tracy Phillips: Absolutely. That is being requested also from competitors and complainants.

Q403 Jeremy Corbyn: And that is released?

Tracy Phillips: It is.

Q404 Chair: Tony Blair in his autobiography made these very surprising comments, which include saying that the Act that he had carried through was antithetical to "sensible government". Do you have any sense of that in the local government context?

Tracy Phillips: I would have to say yes and no. It has been received well, but it is also being used as a driver to drive transparency and accountability. It is a mishmash really.

Roger Gough: My view is more no than yes. As I say, it will probably have an impact on certain bits of behaviour here and there as to how things are done, but I do not think it has had a major "chilling effect", to use the jargon. I cannot think, by and large, of decisions-in fact correction: certainly in my own authority, I cannot think of a decision that has been different on the basis of that.

Q405 Ben Gummer: We are thinking about the time limits as well and the various provisions in the Act. Various witnesses have talked about the 18-hour limit not being able to include thinking time and review time to work out whether exemptions apply. Of course, the counter-argument is that, if you were to allow that, it would be very much open to abuse by local authorities, who could claim that they have thought about it for 18 hours and, hey presto, that is the time up. Do you have any comments on the first problem about the amount of time it takes to review cases? Secondly, if you were to include time for review, how could you do that so that it was not abused by unscrupulous public authorities?

James Rogers: It goes back to one of the points that I made earlier. If there was an ability to be more specific-and ask the requester to be more specific-about the issue or the subject matter they specifically want information on, it would then allow us to look at the exemptions more clearly than just the generality of, "Can we have all the contents of that file or that database?" If we continue to have a process that requires us to do that, then it is sensible that we have to include that within some form of time limit. It might require that the time limits be adjusted to take account of that, but the challenge then is how you get a time limit that actually accords with the detail and the degree of request that is made.

Q406 Ben Gummer: Does anyone else have any answers to that question?

Tracy Phillips: I would certainly agree with James. An incredible amount of time goes into just reading information to see whether it is applicable to go into the public domain.

Roger Gough: My comment would be that I have a lot of sympathy with certain areas like reading and particularly redaction being included within that limit. When it comes to something like review, that is different. Some of the campaigners for strengthening the Freedom of Information Act argue for some greater degree of control over the amount of time spent on the review. I have some sympathy with that because that can be a way of kicking things into the long grass, if you like, or could be, certainly. I would take a balanced approach where you could look in one way at some of the areas like reading and redaction, where I would agree with what others have said, and the question of a review, which I think is slightly different.

Q407 Ben Gummer: The issue of the cost-the £25 an hour-will be taken up by my colleague, but does that in any way equate to the real cost for you at the moment? If the time limit were to be extended beyond 18 hours-let us say to 25 hours, for the sake of argument-would that still make any difference given the fact that it is likely, I would have thought, to cost you more than £25 an hour for an officer of any grade to be doing this work? Is it really going to make a difference?

Tracy Phillips: I am not so sure whether it should be extended as opposed to reduced.

Q408 Ben Gummer: But, if it is reduced by two hours, is 50 quid really going to make a difference in terms of the gross cost to you?

Tracy Phillips: Possibly not. I think we need more help from the Commissioner in being able to go back to the requester and say, "You need to really specify, focus and narrow your request", so that we can justify a reading time that we could apply.

Q409 Chair: When you say "help from the Commissioner", is that the kind of advice and guidance he gives, or how he rules on some of the cases?

Tracy Phillips: Yes.

Q410 Chair: The latter or the former or both.

Tracy Phillips: The former.

Q411 Ben Gummer: Picking up on Mr Gough’s point about the statutory time limits, does anyone disagree with the point that there should be statutory time limits of some sort on review?

James Rogers: I think it makes sense to have some form of limit.

Q412 Ben Gummer: What about the actual people who are doing the work itself, whether it is review or the initial assessment of an FOI request? You will be aware of the enormous variety in hours attributed to that by the Constitution Unit. Within your own authorities, what is your experience of the kind of people you get to do the work and the relative merits of using a junior member of staff or a more senior member of staff?

James Rogers: My view on that would be that we seek to identify the most appropriate level of staff to turn to the question or the information that has been requested. Our evidence shows that 88% of requests that we receive are delivered within the time limits, which suggests that we are not far off getting it right. I would not necessarily agree that having junior staff means that we do not meet the time limits, because in the majority of cases we do.

Tracy Phillips: There is a varied level of staff in some areas who are responsible for reading the information. It depends on the level or type of information that is being asked for. It has to be pertinent to that service area. Who has full knowledge of what information is being requested so that they have the experience to read it and determine whether it can and will be disclosed?

Edward Hammond: The difficulty with having more junior staff, even when a lot of requests are relatively routine and straightforward in nature, is that it increases the risk of failure demand. If a request is misunderstood or a decision is applied wrongly, the requester then has to get back in touch and it costs more money to revisit that decision. I am not entirely certain about a national picture of who is given this responsibility in individual authorities, but it tends to be more junior members of staff, simply because there will often be two people in the authority whose specific core responsibilities are to respond to freedom of information requests. That can sometimes provoke difficulties with knowledge of the service, for example.

Roger Gough: Obviously there is a question between the staff who are working full time as an FOI team on the one side and those staff within service bits of the organisation who then respond to that. There is a difficult balance on the latter because you do need people with the right level of understanding of what it is that they are to provide, but equally there are obvious arguments against having very senior people having a lot of time tied up on this. One thing we have done increasingly is encourage our senior directors at least to take responsibility for the timing of getting stuff back to the central Freedom of Information Unit. We think there should be ownership of that by the most senior officers to ensure that it happens. Inevitably, you will have people of varying rank dealing with the actual mechanics of the request, but often it cannot be more junior staff because you need somebody who has the right picture of what is needed.

Edward Hammond: Corporate ownership of the process is absolutely crucial. Corporate ownership is the first step towards developing a genuine cultural understanding about the benefits of transparency. The more that senior officers and senior members are involved directly in understanding the general spread of requests and how they work-and sometimes being actively involved in the process itself-the better the regime has the potential to work. If it is parcelled off to junior officers who are sitting apart from the council, it is more likely that the council will perceive it as a compliance issue and therefore as a burden.

Q413 Ben Gummer: In that way, it matches the general sense of whether an authority is well managed or not. A good authority, well managed, should be able to make it part of its processes.

Roger Gough: I very much agree with what Edward said about the involvement of both senior officers and senior members in this. That is a positive because it then gives it the right degree of impetus and doesn’t make it an odd little area off on its own.

Q414 Ben Gummer: I want to ask a final question on returning requests from the authority for more detail. Do any of your authorities-Mr Hammond excluded-do that at the moment on an informal basis?

Tracy Phillips: Yes, we certainly do. We go back to the requester and ask if they can narrow their request or specify what they are asking for to help us facilitate the search.

Q415 Ben Gummer: In that case, what more can we do in trying to improve the legislation that will help you reduce that time limit? If you are already doing it informally, what more can be done to help?

Tracy Phillips: We get responses from the requester saying, "I have asked for x. Just give me x." They specifically ask for a dataset or a file on this and we say, "Can you narrow that down to help facilitate our search?" Especially to envisage reading it, they are quite unhelpful.

Q416 Elizabeth Truss: One of the things we have been discussing is introducing a charging regime and whether that would be desirable. Certainly when we had evidence from the former Secretary of State for Justice, Jack Straw, he outlined that he thought that would be a good thing. What is your view from the point of view of people who are servicing freedom of information requests, both in terms of how such a charging regime would work and also whether you think it is desirable?

Roger Gough: We have some sympathy with that. There are a couple of different ways of looking at it. Others answered a little bit about costs. In our case we estimate our cost of FOI at about £500,000 a year, which you could say in the context of a big local authority is not a vast sum of money, but it is still material and the pressure is upwards. That is the key point. We see, like others, a steady, quite rapid rise in requests and this at a time when overall resources are coming down and we have to do some quite difficult things. If you add in the wider transparency agenda-I imagine you will be asking about that in a moment-it does two things. One is that it brings in extra cost. The other thing is that it may well mean at the same time that we are putting, as we would anyway, a lot more information out there in another form.

In that context, I would certainly have sympathy with putting some degree of charge on commercial requesters-and I seem to recall that Leeds city council had some interesting comments on this in their submission-if it can be done. As I say, I think there are one or two possible suggested models. I am open to at least the idea of having a fairly nominal charge on other more general requests as well. If it went hand in hand with the wider transparency agenda, it would not necessarily be a bad thing.

Q417 Elizabeth Truss: One of the issues we discussed was how that would work with the Data Protection Act, where my understanding is that there currently is a charge for requests. Maybe, Mr Rogers, you could say something about that.

James Rogers: Yes; there is currently a charge for Data Protection Act requests.

Q418 Elizabeth Truss: What is the logic in having a charge for one and not the other?

James Rogers: In Leeds we do not actually charge. It is an optional charge, so we do not charge for Data Protection requests.

Q419 Elizabeth Truss: How much is that costing you, if you don’t mind my asking?

James Rogers: I do not know the details of the figures. The charge is relatively low. The view that we have taken in the past is that the administrative burden of administering the charge outweighs the issues in terms of putting it in place. That logic would then apply to any question of whether we should charge for FOI requests, in the level of charge we would adopt and then how you would administer that. There is also the issue about whether a charge then potentially puts off legitimate requesters for information.

The point made by Roger about the commercial issue that we referenced in our submission was as much to do with the public interest test in that sometimes a commercial organisation will ask through FOI for another organisation’s successful tender details to put them into a competitive position the next time that they bid. That is one that we look at and say, "Is that what the FOI should be used for?" Maybe the public interest test in that regard is drawn too widely because that is a private interest rather than a public interest.

Tracy Phillips: I completely agree with both Roger and James. I would just add that the reuse of public sector information has not been used by public authorities where we could charge. It is not enforceable, but businesses thrive from the use of the Freedom of Information Act at a profit-yet at a loss to the local authorities. I do not think the Act was engendered towards businesses using it in that way, whereby they are profiting from it at our cost.

Q420 Elizabeth Truss: Is there an element of a sort of fishing trip about it? Information is or could be publicly available, and they are going the FOI route as an easy way of getting the web address or whatever rather than having to search through things themselves. Do you find that? Could journalists, for example, put out a request to every local authority in the country rather than looking at all the websites and so on?

Tracy Phillips: That is what journalists do. I am sure everybody would agree here that that is exactly what they do. They put in London and national requests. They are fishing for a story. Some would argue that that is in the public interest and they are making public bodies accountable in that manner, but it is the commercial businesses that ask for-

Q421 Elizabeth Truss: They are commercial, aren’t they, apart from some media organisations?

Tracy Phillips: Yes.

Q422 Chair: You are drawing a distinction in the nature of what they are doing between a journalist and the major commercial inquiry.

Tracy Phillips: Yes; absolutely.

Edward Hammond: I have a lot of sympathy with the issue about commercial requesters. The difficulty I have is how you would tell a commercial requester from another requester. I would certainly be entirely against any move to charging. It is quite a fundamental point. You have to get behind what the Freedom of Information Act is for. It is about embedding and engendering the idea that there is a public right to access information. There is a public right to know.

Q423 Elizabeth Truss: How do you distinguish that from the Data Protection Act, where you can levy a charge? What is the logic in that?

Edward Hammond: I presume the logic relates to the fact that it is because it is personal information about a specific individual. I would argue that obviously the charge for the DPA is optional. A lot of public authorities choose not to levy the charge for the reasons outlined. You could say that equally the argument applies to both, and, if a public authority holds information that relates to you, surely you should be able to access and challenge that information if necessary. Equally, with wider public information, if decisions are being made in your name and public money is being spent in your name and on your behalf, surely you should have a right to understand how those decisions are being made. There is a cost involved-of course there is-but that is the cost of democracy. That is inherent in the fact that, hopefully, we have a system where informed citizens are able to make choices-certainly in the future as public services arguably become more marketised-about the way that services are provided to them through having access to a freedom of information inquiry.

Q424 Elizabeth Truss: What about a system whereby people are entitled to a certain number of requests for free and heavy users would pay more?

Edward Hammond: That is always going to be entirely arbitrary. There are always going to be marginal cases. How would you deal with those marginal cases? It would create a bureaucratic superstructure that, arguably, I do not think is necessary.

Tracy Phillips: That comes back to the point of whether they are vexatious or regular requesters. The requests do not have any real value to the public at large and they can be seen to harass the authority, but we cannot use the vexatious exemption because it does not apply to the requester. It applies only to the request. That is where we would need assistance from the Information Commissioner’s Office in terms of going forward and drawing them out.

Q425 Elizabeth Truss: If there was one thing you could do to make the whole system lower cost-it seems to be a higher cost for central Government to reply to these requests rather than local government-is there anything that could be reformed about the way that the request system worked that would be equally good at supplying the information but perhaps cheaper for local authorities to do?

Edward Hammond: It goes back to the issue about proactive publication. Technological solutions to this would be an obvious approach. If you are able by default to assume, okay, we are going to publish everything we produce unless there is an obvious reason not to, and then we will deal with requests on those issues as they come in, it may sound idealistic and somewhat naive, but there is the potential that that could significantly reduce the cost burden on local authorities, if you take an approach whereby residents and citizens are becoming more self-servicing in the way they access information directly from, for example, council websites through the effective use of metadata keywords in the way that information is stored on websites and is publicly accessible.

Q426 Jeremy Corbyn: If you get a lot of vexatious requests from particular journalists or a newspaper or media group and the information is already available on websites, do you tell them that? Do you ask the Information Commissioner to tell them that or do you get in touch with the senior management of those organisations and say that their journalists are wasting your time?

Tracy Phillips: I would not say we get many vexatious requests. If we got them, we would certainly point them towards where the information is found. Our problem is with requesters who that ask for information that has no value at all to the public at large, such as, "How many ghost sightings have you had in your building?" or "What biscuits do you buy regularly?" They have no general value. It is those requests that we need help from the Commissioner to weed out.

Q427 Chair: Isn’t that something you can simply say is not recorded and that you have no files and no records?

Tracy Phillips: But we have to search for it first. We have to identify whether we have the information or not. It is the resource impact that those requests have.

Q428 Jeremy Corbyn: But local papers rely on the number of biscuits you buy. It is essential to their very well-being.

Tracy Phillips: I am sure.

Steve Brine: We will be asking them.

Edward Hammond: The issue is that vexatious requesting obviously tends to be in the eye of the beholder. For one person, a query about the number of biscuits bought by the authority is idiotic and does not make any sense; but, on the other hand, it could be a valid question about the costs that the council spends on hospitality and catering, which could be valid in the context of local council taxpayers. It is very difficult to make those judgments. It is very difficult also to talk about vexatious requesters. Just because somebody has put in half a dozen requests that might be considered vexatious, you cannot say that, in the future, they will not put requests in that are not. Applying the vexatious tag to an individual rather than to a request might be a bit dangerous.

Jeremy Corbyn: I accept that point. That is an important distinction to draw, yes.

Roger Gough: I would agree. There are two distinctions between the vexatious request and the requester. There is a danger, if you go too far down that road, of playing the man rather than the ball, which makes the whole thing more confrontational as well. The Commissioner has been issuing a number of elements of guidance. There have been a number of decisions recently that have been quite helpful in strengthening and clarifying the position on vexatious requests.

There is a separate issue-I think it was the Information Commissioner who mentioned it in the submission to this Committee-about frivolous as opposed to vexatious requests. There is a strong case for looking at those. There are a number of things, and, arguably, it would have to be established on a case-by-case basis because it is a little bit in the eye of the beholder. There are requests that are clearly frivolous and a waste of public money.

Q429 Chair: What brand of biscuits the council prefers?

Roger Gough: We have had one or two ourselves that I can think of, but I will not call down sulphurous e-mails on myself by identifying them.

Jeremy Corbyn: We will give you some garlic; it’s okay.

Chair: It may be the experience of some colleagues-it is certainly mine as a Member of Parliament-that requesters who appear vexatious occasionally have a point and sometimes an important point. You cannot write them off merely because of their vexatious manner of raising things.

Q430 Mr Llwyd: We have started down this vexatious road and it is rather interesting. I would ask what Leeds city council said about paranormal activity and ghosts and so on. I dare say it did not take a lot of thinking time to respond to that request. It does say "a number of requests". Would that be from the same individual or from different people?

James Rogers: It is often from different people. The same individual does not normally put in that request numerous times. The issue is that, while it is easy to respond, there is still a process to be adopted in terms of receiving, considering and responding. While therefore it might be a minimal process, it is still a process. The more you get of those, the more time is wasted in terms of responding to those frivolous issues.

Q431 Mr Llwyd: I gather from the panel that you are fairly relaxed about this in actual fact. There is, I dare say, therefore, no case for an amendment to the law; for example, to provide for a person who might be a repeat offender, if you will pardon the word, being declared a vexatious applicant similar to a vexatious litigant in court. Is there a case for it at all?

Roger Gough: There may be a case for it but it is not one that persuades me. As I indicated earlier, we are beginning to strengthen the position a little bit on what vexatious requests are. That is good enough. As I say, there may be a case for looking at frivolous ones, but that is a slightly different point.

Tracy Phillips: It is not palatable to think of a requester as vexatious and label them as such, but I think we should go down the road of looking at frivolous requests and whether what they are asking for has any real interest to the public at large.

Edward Hammond: I agree, although you might end up with slightly similar problems with frivolous. I am not sure. It raises the same questions. It would be difficult to administer but it is something that could be explored, I suppose.

Q432 Mr Llwyd: Looking at our example, is the ghost sighting frivolous or vexatious?

Tracy Phillips: Frivolous.

Edward Hammond: It is probably frivolous.

Mr Llwyd: It is certainly a waste of time; that’s for sure.

Edward Hammond: There will be so few that meet that criterion. You would have to set that bar quite high. Going back to the biscuits example again, some people would say that is frivolous, but in a way it is not. You would have to set the bar high for the ones about ghosts or preparedness for a zombie attack. We had that one as well. Those are clearly frivolous. It was Bristol, I think, that received that one.

Q433 Mr Llwyd: I had not thought about a zombie attack. While I think about that, would the abolition in effect of "requester blindness" affect the universal nature of the information available? In other words, anybody can apply regardless of who they are and they are not identified. Do you think "requester blindness" is an important issue that should be retained?

Tracy Phillips: It is neither here nor there. It is requester blind. We generally know who they are. They do not hide behind who they are. I am sure there are those who use pseudonyms but I do not think it is an issue for us.

James Rogers: The ICO has already acknowledged that when we are considering a potential vexatious request we are allowed to determine who the requester is. It is not a particular issue.

Edward Hammond: Requester and motive blindness are quite fundamental to the whole regime. If you are going to try and chip away at them or take them away entirely, I think it will fatally flaw the basis of freedom of information. Those two fundamental principles were introduced for a reason. It was to ensure that you got fair and equitable access to public data. If those are taken away, you are undermining the spirit and ethos of the scheme entirely.

Roger Gough: My view is the same. As was mentioned, one or two ICO findings have been quite sensible in terms of what you have with people who abuse multiple identities and things like that. Yes, the existing regime is fine.

Q434 Mr Llwyd: Another thing that has concerned us for the past few weeks is the whole issue of where some services have been contracted out to private concerns. How do we ensure that a requester is able to have the information about that which previously may have been a core service delivered directly by the authority but now via a third party or, should I say, a private concern or it could be a charity even?

James Rogers: Our view on that in Leeds would be that the provider is holding the information on our behalf. It is effectively still Leeds city council public information. Therefore we would still be responsible for providing that from the request. That request may need to come to us direct to retrieve and provide that information, but we would provide it as ours.

Q435 Mr Llwyd: Therefore you would insist, when you engage a contractor, that they keep adequate records.

James Rogers: Yes.

Roger Gough: My view would be the same. Particularly if we do go ever further down this route, which local authorities are, you cannot have a situation where more and more stuff goes off into the long grass and is therefore not available; so I would agree with that. I can see some potential problems in it, particularly if you think about a small voluntary or community sector company, organisation or charity that is providing a service and what degree of burden that puts on them. I think there is a reasonable amount of cross-party sympathy for this, given that the whole spirit of what the Government are seeking to do is, in many cases, to look for those smaller and more local organisations that are not just the big usual suspects in terms of non-public sector provision. It could put some burden on them and that is a potential problem. I cannot see frankly how you can logically say, given the focus on greater public transparency, that you will then have more and more stuff being hived off and therefore not being accessible.

Edward Hammond: As it stands at the moment, a lot of councils will, as a matter of course, include a section on transparency and access to data, certainly in major contracts. For some commercial contractors, it might be culturally difficult, because their ethos will be that you do not automatically release information to all and sundry. With smaller firms I take the point, but again it comes back to the issue that, if you are delivering a service on behalf of the public, that is part of the responsibility that goes hand in hand with delivering that service. You have to be accountable to the people to whom you are delivering it and to the council for that delivery.

Q436 Chair: Do we need to standardise that practice or incorporate it in some way in statute or regulations, or is it happening so generally that there is not a problem?

Tracy Phillips: It is certainly happening contractually. We are certainly inserting these clauses in all our contracts with our contractors. With regard to what Roger has raised about smaller businesses that are now coming on board with which we wish to proactively participate, it is a case of forwarding the burden on to them, but with our help and assistance on how to do that.

Q437 Mr Llwyd: I have one final question. Journalists, being timid and delicate creatures, have told us that they believe their requests are treated differently from those of the general public. I do not expect any of you to say, "Yes, we do treat them differently", but are you aware in any instance of that happening?

Roger Gough: No.

Tracy Phillips: No.

James Rogers: No.

Edward Hammond: No.

James Rogers: I would actually say there is a positive. The positive sometimes is that we will persuade the media organisation to treat it as a media request rather than an FOI request and provide a full media briefing rather than just information in written form.

Q438 Mr Llwyd: Very often it can be in the authority’s interest to have the whole information out.

James Rogers: It can be in the authority’s interest to make sure the media is fully briefed on an issue rather than just responding to specific issues or information that they have requested.

Chair: Thank you very much for your very helpful evidence this morning.

Examination of Witnesses

Witnesses: Glenn Preston, Deputy Director of Information and Devolution, Ministry of Justice, Pam Teare, Director of Communication and Information, Ministry of Justice, Marion Furr, Director of Ministerial Business and Parliamentary Accountability, Department of Health, Brendan Walsh, Head of Information Rights, Department for Environment, Food and Rural Affairs, and Roger Smethurst, Deputy Director of Knowledge and Information Management, Cabinet Office, gave evidence.

Chair: Welcome to our second group of witnesses. We move from local government to central Government. We have a dazzling array of Government Departments represented in front of us. We have Marion Furr from the Department of Health, Glenn Preston from the Ministry of Justice, Roger Smethurst from the Cabinet Office, Pam Teare from the Ministry of Justice, and Brendan Walsh from Defra. Thank you very much for coming in today. I am going to ask Mr Brine to open the questioning.

Q439 Steve Brine: Thank you, Sir Alan. Good morning and thank you for coming in. I will begin where I started with the local government representatives whom you have just replaced. Has the Act achieved its objectives? Has it improved public confidence in Government and public services more generally? Was that ever a realistic objective of the Act?

Pam Teare: I think it has improved transparency of public bodies. There are two ways that you can look at that. You can look at it in terms of the public bodies’ responsiveness to FOI requests and you can also look at the proactive activities that that Department has undertaken to put information out for the public. The FOI Act has acted as a stimulus to the proactivity element, if you like. The amount of information that has come out through FOI requests has certainly vastly increased public knowledge and understanding of how Departments operate and the way they take decisions. On the proactive side, certainly if you look at the Ministry of Justice, we have a microsite on the website where it is not just a question of putting that data out, which we are encouraged to do under the transparency agenda, but making sure that they are made available in a form that the public can use readily and can understand. I would say it is positive.

Q440 Steve Brine: Marion, has the Act improved public confidence in Government at the DoH?

Marion Furr: I am not sure whether we can say that it has actually improved public confidence. We can say that the Department has certainly published more information and made more information available. I am not sure whether improving public confidence was ever realistic as an objective of the Act. Having access to more information will certainly have helped the public make decisions about what Government are up to.

Q441 Steve Brine: Roger, what is the Cabinet Office’s view? Was improved public confidence a realistic objective?

Roger Smethurst: In terms of the Act being transparent, FOI cases keep going up. Last year we had a 55% increase. We release in part or whole more information to requests than we withhold. As to what effect that has had, it is a bit difficult for the Cabinet Office to say, because of the nature of the information we hold. We are the corporate headquarters for Government and we hold the records of current and former Prime Ministers, the Cabinet and Cabinet Committees, as well as security, intelligence, defence and diplomatic functions. The records and information we gather are filtered up from Government Departments and, by their nature, are probably the most sensitive in Whitehall. Other than that, it is probably 50:50, to be honest with you. I do not think there is evidence one way or the other in that respect.

Q442 Steve Brine: What about the media? How has the media’s use of the Act affected the objectives as set out by the Ministers when this was put forward and then put on the statute book?

Roger Smethurst: This is probably one for Glenn to answer rather than me.

Glenn Preston: It is a bit mixed. Like the people who gave evidence before us, we actually do quite like getting media requests under the FOI Act because it is a good route for us to be able to get information to a much wider audience than we might typically if it was just an individual requesting information. So in that respect it can be quite positive. On the other hand we can get fishing expeditions, as was discussed earlier, where all Government Departments are simply asked for information on the basis that somebody is looking for a story. That can take an awful lot of resource for all Government Departments to have to expend, and there is a real question for us of whether that might not be in the public interest.

Q443 Steve Brine: Mr Walsh, you have not had a bite at the cherry yet. What do you think about the media’s use of FOI requests in Defra?

Brendan Walsh: Certainly some of the policy areas and business areas with which Defra deals attract a certain amount of media interest, but we deal with such inquiries as we would any other. We do not regard it as particularly problematic. If the information is available, it is put out there.

Q444 Steve Brine: Do you think that the Act has achieved greater transparency in Government, or is there this problem with the private space where Ministers are able to discuss things, and therefore things are being pushed away from the reaches of freedom of information?

Brendan Walsh: I have worked in Information Rights for 18 months. I have not seen any evidence of that personally.

Q445 Steve Brine: So you are quite happy with the way the Act operates. We are looking post-legislatively at it and how we may change/improve it. Are you quite happy with how it works?

Brendan Walsh: It is burdensome at times. Resources in Government Departments are finite. There have been an increasing number of requests. Defra’s cases went up by 20% last year. We also have lead responsibility in Whitehall for the Environmental Information Regulations, which are slightly stricter than FOI in so far as there are no absolute exemptions provided by the regulations. All exceptions under the regulations are subject to the public interest test. The process has been running now for six or seven years. I think public authorities are generally getting better at it. Their performance is gradually improving. There are more people developing the expertise within public authorities.

Q446 Steve Brine: Mr Smethurst, you were nodding hard on the word "burdensome". You are in agreement with your colleague?

Roger Smethurst: It is really about the application of the public interest test, which I think you are probably going to come on to later anyway. As I said before, the Cabinet Office holds a lot of sensitive information. In order to conduct the public interest test, we need to consult very senior stakeholders, both in Government and beyond, and that takes time. It is burdensome. Sometimes, if there are large volumes of information, it can be very difficult indeed. Equally, we often get requests where the officers who need to conduct the public interest test and have the expertise to do it properly are just far too overburdened with other things they have on at the time. A good example is that during the Libyan crisis last year we received an influx of requests about Libya. The officers who were needed to conduct the public interest test were overburdened with the issues at hand. It made it very difficult to do that in the time and manner that we were supposed to.

Glenn Preston: I would like to supplement that. You asked about the question on safe space, which has become more prevalent from an FOI policy point of view, which is what my team owns. The memorandum that we submitted to the Committee says that the evidence is pretty unclear on this. That is true. The UCL Constitution Unit said that they did not think there was a problem of "chilling" and this requirement as a consequence for safe space, but it has definitely become something that is talked about considerably more over the last 18 months to a couple of years, or maybe slightly longer than that.

Q447 Chair: Why is that?

Glenn Preston: I don’t know.

Q448 Steve Brine: Is it our fault for holding this inquiry? Have we stirred it up?

Glenn Preston: I hope not. The Government were committed to this in the first place.

Q449 Steve Brine: The Prime Minister used the "chilling effect" term.

Glenn Preston: Quite. We do not have evidence that tells us why this has happened. That is one of the difficulties that we face in looking at FOI in policy terms. From my point of view, owning responsibility for the Act and the policy more generally, the fact that it is being talked about is a problem in itself that is worth addressing because this type of thing has the potential to become a self-fulfilling prophecy. We don’t necessarily see this day to day, but there is definitely something in people being given that kind of safe space where they can offer free and frank advice with candour and not have that all played out immediately in the public domain. It is something we are quite keen to continue to look at and to get the views of the Committee on to help us build on the evidence base that we have tried to put together as part of this process.

Q450 Steve Brine: I wonder, Marion, whether the arguments and debates over the Information Commissioner and the Department of Health risk registers are at least in part responsible for that becoming more common parlance at the moment. Do you have a view on that?

Marion Furr: It has certainly raised the intensity of the debate in recent weeks, but I am not sure that it was responsible for raising the issue. I think the issue has been talked about for some time. It is an example of where people have expressed some concern about the "chilling effect".

Q451 Chair: Is there a particular problem about risk registers as distinct from more general policy advice? Is it an area in which people working in your Department feel a particular sense that the safe space needs a greater effort of safeguarding?

Marion Furr: When we look at whether there is a request for freedom of information, we take every request on its own merit. When you look at a particular document like a risk register, the view there is that it is very specifically designed to highlight some of the most difficult issues that you may be dealing with in the formulation of your policy and it would be helpful to make sure that the space is preserved so that officials can speak very frankly and candidly about the worst-case scenario because that is what a risk register is for.

There are other mechanisms for managing risk, for talking about risk, for making risks public and for involving people in the evaluation of those risks, but the risk register itself as a document is very specifically one-sided normally. It is not evaluated in the same way. It does not carry all the arguments. It does not talk about the mitigation factors in great depth and therefore it could potentially be misinterpreted if it was immediately put out. That safe space for considering that and being able to speak frankly is quite important.

Q452 Chair: Looking at it from the standpoint of how it would influence civil servants in the future in how they engage in such an exercise, although you could argue that civil servants might be more hesitant if they were uncertain as to whether their advice might become public or feared that it might, you could equally argue that a civil servant would want it on record that some particular risk that he or she believed was a genuine risk existed. If the public are going back to the record a short time later, the absence of any documentation of that risk would redound on the civil servant, who could be asked, "Why didn’t you tell Ministers that this was going to happen?"

Roger Smethurst: It is also important to highlight the fact that under the Civil Service Code, which is now under statute, it is incumbent on civil servants to create a record. It is also incumbent on civil servants to adhere to the FOI Act.

Pam Teare: In summary, there is an important balance to be struck between on the one hand enhancing transparency and on the other providing the necessary protection in which policy options can be considered and decided. The difficulty in appropriately striking that balance is worthy of further consideration.

Q453 Chair: Do we have any evidence of Ministers advising civil servants not to write things down, which would be in conflict of course with the Code?

Glenn Preston: No.

Marion Furr: No.

Roger Smethurst: Not at all. Again, there is something in the Ministerial Code that says that Ministers need to make sure they are not asking civil servants to do anything that would be against the Civil Service Code or the CRaG Act.

Glenn Preston: My practical experience of this-certainly working with our current Ministers in the MoJ as well as previous Ministers-is the exact opposite. There is a real expectation that there is a proper record kept. More often than not Ministers will need to rely on that record. Obviously, the more time passes, the more important it is that we have a decent story to tell there. Certainly the practical experience that I have had, both in the Ministry of Justice and other Government Departments, is the exact opposite to that.

Q454 Chair: Looking at it purely from the standpoint of civil service practice and how civil servants will behave and react, is the exercise of veto by the Government seen by civil servants as a signal that their safe space is being protected? I am not asking you to comment on the individual cases. Is there a kind of expectation among civil servants that Ministers will mount some kind of defence of the safe space?

Roger Smethurst: The veto has been used only a few times so I think it is difficult to say that we have any evidence about that.

Glenn Preston: The Information Commissioner’s advice on this in front of the Committee got this spot on. It is there as a mechanism to be used when Ministers believe it is in the public interest for that information to be withheld. But it is a kind of backstop and there is quite a lot of process that we would expect to happen before you use the veto. The Government’s own policy on the veto says as much. We will use it only in really quite exceptional circumstances, which is why it has been used only a handful of times.

There are all sorts of other things, if we believe strongly enough that the public interest is in withholding information, that we can do before getting to that stage. There is the application of the exemptions and the public interest test. The cases go to the Commissioner, who quite often does find in favour of the Government. It is the same with the tribunal if the case goes beyond that as well. There is quite a lot of legal precedent that says that this type of information and safe space is protected.

Q455 Mr Llwyd: The Cabinet Office has the highest number of permitted extensions to the 20-day limit. It has missed the 20-day deadline without notifying the requester in 66 out of 426 cases. I am mindful of your responses to questions put by Mr Brine, when you referred to the difficult time around the Libyan conflict, but why is it that the Cabinet Office in fact has such a weak record?

Roger Smethurst: First, can I put this in context? We accept that our performance in 2010 and the first part of 2011 was poor. It was very bad. We have worked very hard over the last year, in partnership with the Information Commissioner’s office, to turn this ship around. In the last quarter of 2011, 92% of cases met the obligations under the FOI Act, and our management information for the first quarter of 2012 indicates that we will have improved further. I have stipulated the complexities around the information that we hold. I have also pointed out that in more cases than not we give out some information. At the moment I would also say that right now we have no internal reviews beyond 40 working days and we have only two initial cases that have gone 40 working days. All cases have the permitted extensions.

Q456 Mr Llwyd: So there has been an improvement.

Roger Smethurst: Yes, there has.

Q457 Mr Llwyd: Generally speaking though, why does performance vary so much across Departments?

Glenn Preston: It is really about the complexity of information or the type of information that is asked of different Departments. Different Departments really get quite different numbers of FOI requests and the nature of the information that is asked for from Departments can differ quite widely. Roger has already demonstrated that the sort of request that the Cabinet Office gets may well be very different from other parts of Government. The type of information that the Cabinet Office holds may well be very different.

The MoJ, for example, gets quite a lot of requests for information about court records and things that are exempt under the Act. We get requests where we are bound to not provide that information. That is not the same type of request as other Departments receive. That is the central explanation for why performance differs.

Q458 Mr Llwyd: Would statutory time limits for responses be helpful where the public interest test was being applied and considered and also internal reviews?

Roger Smethurst: I have already expressed some reasons why I think that would not help. Everybody who works on freedom of information in the Cabinet Office-both in my team and across the Department where they are processing the information and doing the public interest test-works on the basis of trying to release what they can and protecting only what needs to be protected. My fear is that, in certain circumstances, if we were to put a time limit on this, then they might err on the side of caution rather than do the job properly.

From our experience in the Cabinet Office, what we have done with the help of the Information Commissioner over the last six months has shown that their process of getting Departments or public authorities to sign up to a commitment for improvement, to help and work with them to achieve that and to deliver results-and on their website they showed that they have been successful with us and the two other authorities that they were taking on at the same time-is the proportionate way to go forward on that.

Glenn Preston: I would like to supplement that. There is an important bit of context about whether a time limit should apply to a public interest application. The proportion of requests that you are talking about is really quite small. It is only about 5% of the total number of requests that central Government actually receives. Of that 5%, I think you are looking at about half that are always dealt with in the additional 20 working days that we apply, which is the good practice guidance that the Ministry of Justice and the ICO publish. If you were to apply a time limit to public interest tests like you describe, then you are talking about that affecting only a really quite small proportion of the total number of requests that Government receive.

Pam Teare: I agree with that in relation to the Ministry of Justice. As we have discussed, performance varies between Departments because of the different nature of the information that we hold. For example, with the Ministry of Justice, public interest extensions have been used for less than 1% of cases.

Marion Furr: I can add to that. In the Department of Health, of nearly 2,000 cases in a year, we had only nine public interest test extensions. We answer all our cases within 20 days, but, if we had to go over therefore, it would be because there is a very good reason and there was something very complex about that particular case. Human beings being what human beings are, putting a deadline of 20, 30 or 40 days on something could lead some people to think, "Oh, I’ve got 40 days to do it", whereas at the moment we say, "You have to do it as quickly as possible." It could become a target rather than a limit.

Q459 Mr Llwyd: Why is it that requests to central Government are far more expensive to deal with than to other public bodies, especially when there is an internal review involved, which can be particularly expensive?

Glenn Preston: The short answer to that is that we take longer to deal with requests. The reason that we take longer to deal with requests, we think the evidence shows, is because of the nature of the information. In the evidence session that you had this morning you heard that individuals tend to ask about things that interest them personally from local authorities and they do not necessarily ask about very broad policy issues, which is what can happen in central Government Departments. That process of reading and redacting, if that is what you are going to do, can take a considerably longer time. Of course, that is not something that we account for in the cost limit. For us it is about the nature of the information.

I can think of a good practical example when freedom of information first came into effect in 2005 in a job that I did, where we had a fishing expedition from some political researchers. They asked for all our information about Scottish devolution in the Department I worked in at the time. We had literally hundreds of files with thousands of bits of paper. It took us several months to go through it because we had to combine that with the day job. We just had to do it. That was the nature of our statutory obligation, but it just took a long time because the type of information that was being asked for was so broad.

Roger Smethurst: When you are doing this, you have to go through it sentence by sentence or paragraph by paragraph. You cannot just take a broad-brush approach to it.

Q460 Ben Gummer: I want to deal quickly with vexatiousness. Is this a problem before we go any further on it?

Roger Smethurst: First, I am sorry to say that we, too, have had a question about zombies.

Q461 Jeremy Corbyn: Is it the same person?

Roger Smethurst: I do not know. I was wondering that at the time when I heard it and wondered how to find out whether that was the case. I have to say that that was not treated as vexatious.

Q462 Jeremy Corbyn: What was the answer you gave?

Roger Smethurst: "We hold no information."

Chair: It does not take long to do that.

Roger Smethurst: Yes, but we still have to do the obligatory trying to make sure that the part of the Cabinet Office that deals with contingencies does not actually have anything. It is the process. We can make that call, but, yes, it is quite quick. It is just normally a phone call.

Steve Brine: A "Can I just check?"?

Roger Smethurst: Yes. I could give some other examples of where we have either used or considered section 14 frivolous or vexatious requests. We have had instances where we got follow-up requests from a requester where it was abusive and threatening towards a member of staff, and we did use vexatious in that particular case. We have had a case of an individual who has a long history of letter-writing campaigns. We get pages and pages and pages of the letter and it is very difficult to isolate within that what is the request for information. We do occasionally get, usually from students, 19-page questionnaires where, again, you have the same issue of trying to isolate what they are asking for. We have had a conspiracy theory about a stationery order number that appears on papers. This was something that appeared on a number of things he had seen released previously, which is something printed on the bottom of a page. He wanted to know what this meant. Again, it went to internal review because he did not believe us to start with. We had to find some examples of clear ones at the bottom of the stationery cupboard to clear that one up. Those are just some basic examples that we have had. It is a very small number, but I don’t know what the answer to this is really.

Glenn Preston: A bit of context is quite important. In 2011 the stats that the MoJ collates centrally for Government said about 3% of requests were treated as vexatious using the exemption in the Freedom of Information Act. Again it is quite small. There is no suggestion that we are more or less worse off than any other public authority in terms of the numbers of vexatious requests that we receive.

In some of the evidence that was gathered for us to supplement the memorandum that we submitted there was some indication that people found it quite a hard exemption to apply. That is because, despite the fact that the Act provides for us to be able to do this, it does not define what we mean by "vexatious". That relies on guidance or decisions that are made by the Commissioner or the tribunal. There has been some quite helpful guidance that has been produced by the Commissioner in particular on this.

In the context of post-legislative scrutiny, it will be interesting for us to know whether the Committee thinks we could do better at defining what is meant by a vexatious request or a frivolous request. That need not necessarily be in legislation; it may well be that the guidance can just be clearer than it is at the moment. That is something on which we would welcome the Committee’s opinion. I do not think we should overstate the problem here. It is pretty minor in the grand scheme of things.

Q463 Ben Gummer: I want to move on to fees quickly. Given the fact that it costs central Government a lot more to answer an FOI request than local government, is a fee really going to make any difference to the recovery of the cost? Would it have to be set so high that it would become a barrier to people asking questions?

Pam Teare: It is quite a difficult one, as you say. The research that we have at the moment illustrates that, on average, a request costs about £184, but that is very much a ballpark figure.

Q464 Ben Gummer: Is that just in the MoJ?

Pam Teare: Yes.

Glenn Preston: That is the standard figure across the board.

Pam Teare: That was from the Ipsos Mori research. That is very much a ballpark figure. Some are much less and some are much more, as you would expect. It very much depends on the sort of scheme that you might have in mind. We have talked about the standard rate. There again, people might feel it is more appropriate to have a sliding scale depending on the complexity of the request.

There are two key things. One is that we need to make sure that anything that is introduced safeguards and maintains the right to request information, and, secondly, that we do not introduce some system that is quite costly to implement.

Q465 Ben Gummer: Do you think there is an argument that, even if you do not recover your costs, it has a sot of prophylactic effect on requesters in that they might form their questions more carefully and put fewer questions in, so it might reduce it?

Pam Teare: Again, you can look at that either way. People might think, "What I am really interested in is this quite small area here, but, seeing as I have to pay for this information, while I am at it I might as well ask for quite a few other bits of gen too." It is quite tricky.

Q466 Ben Gummer: I want to ask one final question of you, Mr Smethurst. You will have seen the evidence of Lord Hennessy or you may have done.

Roger Smethurst: I have not actually, no.

Q467 Ben Gummer: There was a very interesting exchange with Lord Hennessy about the nature of Government record keeping and whether it had improved. It is a related issue to FOI, FOI being designed in its original form for a broadly paper-only Government. That is clearly not the case now. His view is that the quality of Government record keeping has certainly diminished in the last few decades. You are probably more in charge of Government record keeping than anyone else. What is your view on this?

Roger Smethurst: I do not think this has anything to do with FOI. That is the first thing I would say.

Q468 Ben Gummer: It does if you cannot get the record.

Roger Smethurst: We have record-keeping systems. The point is that the world has moved on, and it has moved on quite a bit since the Act was passed in 2000. Most people operate in an electronic environment. In fact what constitutes a document or a record can be in a multitude of formats. It is no longer a formalised minute, although it is in some cases. If you look at the Cabinet records, for example, they have hardly changed in their format. They are documented. A record can be an e-mail or a PowerPoint presentation. It is much broader. There is also a lot of evidence to show that the amount of information we are creating across the world is going up exponentially. That has an effect on the amount of information that Government hold.

In terms of record keeping, the quality of the record will have changed but the actual commitment that civil servants have to maintain a record has not diminished. Several Government Departments are looking at the electronic records management systems they have now and looking at updating them further. Again, the records management systems that most of us have in place even now are beginning to look quite antiquated.

Glenn Preston: I would like to supplement that. We are certainly not aware that we have less of a decent record of decision making or advice to Ministers. If anything, for the reasons that Roger articulated, we have more now. I do not think the fact that it is electronic as opposed to paper-based, certainly in the context of FOI, matters an enormous amount. When we get an FOI request, the question is, do we hold this information or not? The fact that we hold it in our electronic records management system or on our e-mail system as opposed to as a hard copy in a file is neither here nor there.

Q469 Ben Gummer: You feel that his fears are misplaced?

Roger Smethurst: Going back to what I said earlier, it is the fact that the world has moved on. If you look at records in ancient times, we have moved from carvings on walls through to papyrus and paper. You would not expect the paper record that existed before electronic stuff came along to be managed in exactly the same way as you would for previous media. The fact is that the quality of the material has changed because the tools that we use to conduct business have changed.

Glenn Preston: You asked the question, is it misplaced? In the context of FOI, we do not have a problem answering FOI requests because we cannot find or access the information. What is hard with FOI can be the application of the exemptions and the public interest and things like that. I am confident that on most of the issues-perhaps zombies aside-we do not have a big difficulty with the record on big policy issues and advice to Ministers and that type of thing.

Q470 Nick de Bois: I would like to explore briefly the relationship between the MoJ and the Cabinet Office, given your respective responsibilities for FOI and the transparency agenda. Perhaps Mr Smethurst, first, you could outline how you work at an official level together.

Roger Smethurst: I first need to take a step back and say that I am responsible in the Cabinet Office for the operation of transparency within the Cabinet Office. I do not have responsibility for transparency across the whole of Whitehall. You might be best placed to talk to Glenn because he is actually on the transparency board side.

Glenn Preston: That is one of the central mechanisms. Lord McNally, who is the Minister with responsibility for FOI and Data Protection as well as broader issues around data sharing and for the National Archives, sits on the transparency board, which is chaired by Francis Maude, the Minister for the Cabinet Office, as do I. We are standing members of that board, which looks at transparency issues in the round and provides advice to Ministers on the transparency White Paper that the Government are committed to publishing shortly, having done a consultation in this space. There is a separate part of the Cabinet Office from Roger’s bit that deals specifically with the co-ordination of transparency issues across Government. As a working group, that is attended by officials from my team, who provide advice and support to that part of the Cabinet Office on the policy issues for which we are responsible-that is FOI and Data Protection.

Q471 Nick de Bois: What I am driving at-and it may be a question for Ms Teare on that score-is: given that FOI is presumably part of the transparency agenda, how do the two co-ordinate your activities? Do you not share on the same Committee? Do you not feed into the transparency agenda? Are you very much, "I am FOI and I will carry on executing the framework, developing the framework and seeing it is implemented"?

Pam Teare: I do not sit on that board so I am not an expert on that side of things.

Q472 Nick de Bois: What I am driving at is what the official working level between the two of you is. You have the transparency agenda and then you have the MoJ, which is responsible for the framework effectively and seeing that it is enacted properly. Is there a relationship there? Does there need to be?

Pam Teare: I think they are very much complementary. They support each other really. You have the FOI legislation, which we operate and which we need to make sure Departments are fully compliant with. As we have already discussed, FOI has had a broader effect on encouraging Departments to proactively publish material off their own bat. That is where the read-across for the transparency agenda picks that up.

Q473 Nick de Bois: Perhaps I could explore it in another way. Could you achieve better practice if there was a formal means for you to sit together and work together? I sense, although I am not sure you are giving me the answer to that, that there is a natural link between the transparency agenda and the FOI. Is there a formal mechanism for sharing best practice and working together?

Glenn Preston: That formal mechanism is the transparency board.

Q474 Nick de Bois: But no one from MoJ is on that side.

Glenn Preston: Yes, that is what I said. Lord McNally as the Minister and I as the Deputy Director of Information policy are both standing members of the transparency board. Below that, practically every day, we will be engaging with the Cabinet Office officials who support that agenda and support that board. It is the job of my team to say to them, "This is how FOI works", or, "This is what is going on in FOI in the context of what you are thinking about doing. For example, in Departments publishing open data strategies or your commitment to publish a White Paper on open data, these are the things that you will need to think about in the context of FOI or data protection." So it does happen.

Q475 Nick de Bois: Do you measure moving best practice or improvement on best practice, or would you just regard it as an ongoing process? Have you been able to look back and say, "Together we have identified this and now we can implement it to improve practice so that we overcome everything from the time issues to all the things we have been talking about"?

Glenn Preston: We do. It is an ongoing thing. If we are talking specifically about FOI, the Ministry of Justice maintains an information managers’ network, which meets quarterly, or if there are particular issues that arise in between that time, it has a virtual network where we share information about big decisions that are made by the Commissioner or the tribunal. We share information about new guidance that the Commissioner publishes about best practice, such as improving time, applying particular exemptions and these types of things.

Q476 Nick de Bois: And initiatives from within your own field?

Glenn Preston: Indeed.

Q477 Nick de Bois: You are talking about guidance from other areas, but do you seek and work out initiatives for best practices?

Glenn Preston: Yes. At the moment one of the things we are looking at is trying to improve our freedom of information statistics. The mechanisms that different Departments use for gathering that information, which we then publish centrally, are all different. We are exploring whether we can have a single system that allows everybody to feed into it so that we have a much more standard set of statistics that is cheaper to run, more efficient and hopefully provides more useful information for people.

Q478 Nick de Bois: I have a quick question because I am conscious of time. Could you summarise what developments, if any, have been made by the Cabinet Office in taking forward the transparency agenda? What are the key objectives?

Glenn Preston: Some of the most significant developments have been in the recent Protection of Freedoms Act. There were provisions in that Act that extended the Freedom of Information Act around 100 further bodies. There was also a section in that Act that improves the code of practice that the Information Commissioner has to produce on freedom of information. We also tried to extend the independence of the Information Commissioner in a number of key areas in that Act. One of the things we have been focusing on over the last few months is the independence of the Information Commissioner and broadening the Act out. The Ministry of Justice has also extended the Act to a number of other bodies last year by Order in Council, and we are committed to doing that again within this Parliament. You can expect to see the Act being extended to other types of organisations.

Q479 Nick de Bois: If the Act is successfully extended, so be it. What do you think the Cabinet Office will regard as "success" at the end of the day in the transparency agenda to be able to say it is a job well done, although I am sure they will seek continuous improvement? What would be the success criteria?

Glenn Preston: I am not sure I am in a very good position to answer what Cabinet Office would see as success.

Roger Smethurst: I think you will have to ask the Minister tomorrow.

Glenn Preston: There is a commitment from the Cabinet Office to open data. This is one of the things that we have started across all Departments, the Ministry of Justice included, where we are releasing much larger datasets than we ever have done before, with the purpose both of informing people about particular policy issues and also trying to stimulate others to use that information in ways that they have not done before so that it will contribute to growth and things like that. I do not want to put words into the mouth of the Minister for the Cabinet Office, whom you will see tomorrow, but I suspect he would see success as much more of that and people feeling like they have access to it and are being able to use it for really productive reasons.

Q480 Ben Gummer: Returning briefly to safe spaces, Mr Preston, you made an interesting point about doubt creeping in. Even if there is not a problem, there is a perception of a problem, which might be particularly difficult at high-level decision making that is extremely politically sensitive. That is not something that necessarily might happen in every local authority. One might rely on the development of case law to provide that reassurance, but recent experience suggests that it has done precisely the opposite. In fact, any amount of doubt there might be might be increased.

Do any of you have any suggestions about how you can give reassurance, even without changing the broad substance of the Act, to civil servants about a safe space?

Glenn Preston: I take your point about recent experience. I am not sure as a matter of fact that it is necessarily true. There are a good number of decisions made by the Commissioner and the tribunal that support the concept of safe space and uphold decisions of Government Departments to withhold in the public interest because they are still formulating policy and so on. That is particularly true of things that are very current or immediate. The longer the passage of time, the harder that argument is to run.

There are practical examples, however, which do prove your point and sow some doubt in people’s minds. Whatever the Committee recommends, there is something we can do in this space to give people that comfort. People have talked about the idea of an absolute exemption for formulation of Government policy, for example. We would be interested in seeing what the Committee has to say about that type of thing. It may well be that you can counter that with having a much shorter time limit before the records are available. At the moment we have 30 years. We are committed to reducing it to 20 years in the lifetime of this Parliament. Could you make that shorter still for particular issues?

Q481 Chair: Are you thinking you might have a category of records for which there is a shorter time scale because their primary purpose is to protect a safe space for the life of a Government?

Glenn Preston: Yes; that is a possibility. Categorising information does get quite difficult. The Act was designed not to do that. You asked about risk registers earlier and whether they are a particular category. As things stand, we treat information as information with every case on its merits and that type of thing. We do not make the distinction between categories because the Act does not allow for that to happen, but that is the nature of the way that the discussion has been going both with the Commissioner and at the tribunal. Is there an argument that we should be looking at that type of categorisation?

Q482 Chair: This is perhaps an unfair question to ask you, but clearly you have given us a picture of the civil service coping reasonably happily with the way the FOI works, but we have an ex-head of the civil service, and indeed other ex-heads of the civil service, giving a much more jaundiced view. Obviously they give the impression when they say these things that they are trying to speak up for civil servants as a whole in a way that civil servants in post may be inhibited from doing. On the other hand, they may be reflecting the civil service they were brought up in rather than where the civil service has got to.

Should we take the comments of past heads of the civil service as indicative of the way that civil servants currently feel, or is it misleading?

Glenn Preston: It does not feel invidious to answer that question. The points that were made in evidence by Lord O’Donnell could go to the point that Mr Gummer just made. The Cabinet Secretary is serving a different type of machine than perhaps the average civil servant in a Government Department. The information that they are dealing with, particularly at the centre of Government and the higher that you go up organisations, tends to be more sensitive in nature. It is understandable that there is a desire at those levels that you have that type of safe space to be able to think the unthinkable and say the things that you might not want to say in an open public forum. It is quite a different thing from the day-to-day experience and requests that civil servants receive under FOI, which are relatively easy to handle and where for the majority of the time, as Roger has said, at least some information is being disclosed. We do not feel there is any evidence that supports the "chilling effect" in that type of space, but it does not mean that it does not exist in different parts of Government.

Roger Smethurst: Part of that is being able to consult, within a framework of confidentiality, very senior stakeholders in the development of policy. Those are outside the British Government and in some cases they are with overseas opposite numbers. You need good evidence there to be able to develop policy and do that in a safe space.

Chair: Thank you very much indeed for your very thoughtful and frank answers. We appreciate it very much.

Prepared 23rd May 2012