freedom of information.co.uk

Q: What was it particularly in your background that made you qualified for this job?

A: The requirement was either a legal background or one in IT, but I think that what the former Information Commissioner Elizabeth France was particularly interested in was my practical background in public law and also working as a manager and administrator in a political organisation such as a local authority that was going to be subject to the FOIA.

Q:  In the three years that you’ve been in the post have you witnessed a good deal of progress in the public sector’s preparedness for the FOIA?

A:  Certainly over the period of three years there has been a lot of progress.  The run up to implementation since the passage of the Act in 2000 has obviously been quite a long time and public authorities have used that time to a lesser or greater extent to prepare themselves.  There are some particularly good examples of good practice where public authorities have used that time well to prepare for FOI, but we’ll really find out whether authorities have used the time well and are properly prepared when the Act comes in.  

The other thing that has happened in that time of course is that all public authorities have been required to adopt and maintain a publication scheme and that process has taken up a lot of time and effort of staff at the Information Commissioner’s office in approving pub schemes and advising public authorities what their responsibilities are in respect of publication schemes.

Q:  My experience of talking to those in public authorities is that those with responsibility for FOIA are usually very geared up. But they are concerned that outside their FOIA project team the level of awareness is not what it should be.  Is that also your experience?

A: The picture is very different in different authorities so it would be wrong to generalise.  We’ve certainly had a lot of feedback from FOI project managers that they have found it difficult to engage senior managers with the Act and its implications.  Perhaps that’s understandable given the long lead-in time and we’re certainly seeing now a much greater focus as 1st January 2005 draws near.  Again, we’ve seen some examples of very good practice where management boards have appointed champions to lead the work on FOI and to raise awareness at a very senior level in the public authority.  Of course it’s not a requirement of the Act that they do so; the requirement is very much one of legal compliance, which will, of course, be tested after January.

Q:  Do you think it’s widely enough understood that the Act doesn’t itself place any legal prohibitions on the disclosure of information?

A:  I think those that have an awareness of the Act understand that there is a basic presumption of disclosure and that the phrase ‘the Right to Know’ does encapsulate that concept.  What I think is going to be more interesting in practice is the extent to which that is followed through in the behaviour of public authorities.  What I mean by that is whether they in fact reach a situation in which the culture of the organisation represents a default position of openness, or whether they revert to the former tradition in the public sector, which is that information is not for disclosure unless there is a requirement to disclose it.

Q: Obviously different standards will set different standards; some will drag their feet and some will be very open.  Shall you require the more recalcitrant authorities to adopt the standards of the most open?

A:  We will be making judgments about public authorities on the basis of the complaints made to us and what we find on investigating those complaints.  Through the investigations we will find out whether public authorities are facing genuine difficulties over compliance, or whether their non-compliance is in some way wilful, or through a failure to give due priority to their obligations under the FOIA.  And our response will be proportionate to the issues that we uncover in our investigation. 

We know that in some parts of the public sector a great deal of work has been done to prepare for implementation, where there is clearly awareness of the Act and a lot of time and effort has been put into anticipating requests after January.  There might be smaller public authorities who are either not fully aware of the implications of the Act for them or who have had genuine difficulties in resourcing a level of requests which they have not anticipated.  The Commissioner has made it very clear that he will not be very sympathetic towards large public authorities who have had plenty of time to prepare and who we know have been actively preparing for implementation.  But our response shall very much depend on what we find as we investigate individual complains on their merits.  We can’t say that we are going to be sympathetic towards undue delay, or a failure to attend to the basic requirements of the Act because there’s no excuse for that given the long lead-in time.  But we will listen to public authorities’ reasons for any proven failure to comply with the Act; we’ll be giving them support and guidance as to what they should be doing to be compliant. 

The Commissioner doesn’t have powers to penalise public authorities and that won’t be our initial approach.  The will want to know what the issues are for them and to responds to that accordingly.

Q:  But if a public authority sets a precedent in terms of disclosure in the public interest disclosure – say in relation to the section 36 exemption – and a similar authority refuses to release an equivalent piece of information, will the precedent set be sufficient for you, if you’re investigating the second authority, to order release? [Note: section 36 of the FOIA exempts, subject to the public interest test, information that could inhibit ‘the effective conduct of public affairs.’]

A:  It will certainly be a fact that we’d want to take into account and one of the interesting effects I think of the FOIA over time will be a general ratcheting up of standards of openness.  It’s quite right to say that the good practice in one authority will make it very difficult for a neighbouring authority of a similar type to justify withholding the equivalent information.

Q:  So you do feel that over time there will be a ratcheting up of openness – that he general level of openness in the public sector will increase rather than undulate?

A:  It might not be a straight line of progress, but over time, I think, there will be a ratcheting up.  I think that must be the trend and the effect of this legislation, because it’s a natural consequence of the presumption of openness.  And it’s part of our job to ensure that good practice is disseminated throughout the public sector and we will be using examples of good practice from within a particular part of the public sector to set the standard within the whole of that part.

Q:  In the early months of the Act, you won’t have set any precedents on which you can base decisions on, say, the public interest test.  How much attention will you pay to the decisions of the Parliamentary Ombudsman and of your peers in other jurisdictions?

A:  There’s a lot that we can learn from the work of the Parliamentary Ombudsman in handling complaints brought under the Open Government Code.  Many of the exemptions in the FOIA have equivalents under the OGC and the Parliamentary Ombudsman has delivered some very detailed decisions on individual cases with clear analysis of those exemptions.  We’re not, of course, obliged to follow the precedents of the Parliamentary Ombudsman, but we’ll certainly look very carefully at the issues they have addressed in dealing with similar matters.  Likewise there is a lot to be learned from some overseas jurisdictions.  In some parts of the world, such as Queensland, Western Australia and Eire, there are some very detailed decisions on exactly the sort of issues we expect to be facing in the UK.  And again these will be instructive for us. 

Q:  What about your own adjudications.  What is the publication regime likely to be for those?  Will they be annual, or on a case-by-case basis, and how quickly are you aiming to make adjudications on cases?

A:  Although we have done some work on trying to predict the volume of complaints, it’s very difficult to predict with any degree of accuracy the volume and complexity of cases that will come to us.   Our aim is certainly to publish our decisions, but as you’ve just said in the early days there will be no precedents, so there will be even greater interest in our early decisions because they will all start to form a body of early jurisprudence under the FOIA.  So we will be aiming to publish our decisions as quickly as possible. 

In the longer term we are unlikely to publish full decisions where they do not raise any new issues and do not add anything to the jurisprudence, but we will still publish summaries at least on an annual basis and we have a duty to report to Parliament on at least on an annual basis.  We expect to follow the pattern we’ve adopted in respect of our data protection responsibilities, which is to include case studies in our annual report to Parliament, but we will be following the practice of the Parliamentary Ombudsman in publishing regular digests of decisions that we make.  This will be a significant part of our activity in the first year in rolling out to public authorities the learning from early decision making.

A: How regular do you think those digests will be in the early months?

Q:  There will be decisions posted on our website on an ‘as and when’ basis, and we will aim to publish bulletins and digests on either a quarterly or six-monthly basis.  It’s difficult to make clear commitments without knowing exactly knowing exactly what the nature and volume of complaints we have to handle will be.  If we are swamped with complaints, the resolution of those complaints will clearly be our first priority.  Making sure public authorities are able to learn from the lesson of those complaints will follow very hard on the heels of that.

A:  Will the full deliberations be available on request?

A:  We’re covered by the FOIA the same as everyone else, so the answer has to be yes.

Q:  But would any of the exemptions apply possibly?

A: We’d have to consider that, and our feeling is that on the whole the identity of the requester on a particular complain would be personal information so we’d have to treated it in accordance with those principles.  But where the request is made by someone in what you might call a professional capacity, if for instance, they are a politician, or a journalist, pursuing a professional agenda, we might follow the precedent of some other jurisdictions and actually identify them.

Q:  Let’s come back to the appeals.  Obviously in the early days these will be against individual authorities, but it could be eventually that you’ll be considering an appeal against an interpretation of the Act by the Clearing House.  Obviously the level expertise of the clearing House is close to that of the ICO.  Do you anticipate getting into some scraps with them? [Note:  the Clearing House is an expert unit within the Department for Constitutional Affairs that will help public authorities dealing with difficult FOI requests.]

A:  I think it would be naive to say we’re not going to get into some scraps with Central Government departments; there are going to be some very difficult cases over some very sensitive information.  I’m not sure that in a formal sense we will have disputes directly with the Clearing House, because, under the Act, every government department is a public authority, so in formal legal terms our dispute will be with the department to whom the request was originally made.  The Clearing House really exists to give advice within government on the handling of requests, so, whilst a government department might be advised by the Clearing House on an appropriate response, our formal adjudication would relate to the department which holds the information.

Q:  Just going on to the commercial information that could be available under the Act.  In the light of your local authority experience, what sort of commercially valuable and sensitive information do you think will be available under the Act that won’t be proactively released through publication schemes?

A:  I think we’ll be looking at the terms of individual contracts and we’ll also be looking at the performance of private sector contractors who are delivering public services on behalf of public authorities.  Clearly there will continue to be some areas where non-disclosure is justified, but I think we will see a raising of the threshold for non-disclosure.  Throughout the public sector there has been a tendency to mark any commercial contract with the term ‘commercial – in confidence’.  It’s clear from the FOIA that we have to go behind any such label and look at the precise nature of the particular piece of information that has been requested.  This right applies to information not to documents, so the blanket marking of documents really ceases to have any significant effect for these purposes.

Q:  What about documents that show corporate thinking; the background information that shapes the decision-making climate within an organisation?

A:  I think a lot more of that information will be disclosed on request.  That may be an area in which there may well be time-sensitivity.  So information is more likely to be disclosed after a decision has been taken and that might mean after a contract has been awarded, rather than during the deliberative process itself.  But in order to promote the principles of transparency and accountability it’s essential that more information about the deliberative process is disclosed, but at an appropriate time. 

Q:  What do you call an ‘appropriate time.’  For example, if it’s deliberation over the award of a contact and the public authority, the contract is awarded and the public authority is not thinking of awarding a similar contract for another three years, at what point in that cycle do you think that the deliberations over the original contract might become releasable?

A:  Well, in a case like that the point at which the contract is awarded and the award of the contract is communicated is going to be pivotal to the whole process.  While a number of bids are being evaluated it would be inappropriate to disclose the precise terms of those competing bids, but, once the decision has been made, the sensitivity is significantly reduced.  And once a contract is operative I’d suggest that there is a clear public interest in the transparency of the terms of that contract.

Q:  In terms of the public interest, I notice that the Department for Constitutional Affairs talks of information of potential use to competitors.  Surely in this case, where the decision is being made on whether or not the release of the information is in the public interest, it depends on who’s asking doesn’t it?  Because if the information is going to a competitor the information is more prejudicial to a third party commercial interest than if a member if the public was asking.

A: Well the Act doesn’t allow that to be taken into account.  The Act is concerned with putting information into the public domain and, except in circumstances where you are talking about requests for personal data, the identity and status of the applicant is irrelevant.  It might be that the information, if in the public domain, can be put to a particular use by a particular person, but that isn’t something that a public authority can, or should, take into account when making a decision on whether or not to disclose, because the outcome of the disclosure is that the information is in the public domain.  Conjecture as to in whose hands the information might fall is really irrelevant.

Q:  But if a company is consulted by a public authority over an information request for commercial information about one of its contracts, it might say, “We don’t mind the information being released if it’s going to an academic, but if it’s a rival company we do mind.”

A:  The test the public authority has to apply is whether the information should be put into the public domain.  If they receive a particular request from an individual, such as an academic, to which they might be more sympathetic, then they can consider that as a particular case.  One possible outcome could be that the request is that the information is not disclosed because there are valid grounds for exemption and because the public interest test favours withholding the information.  So that might be the outcome as far as putting the information into the public domain is concerned.

There is nothing then to stop the public authority saying that they will give the information to a particular individual, but that would not be a disclosure under the FOIA and they ought to think very carefully about what measures they put in place to prevent the wider disclosure of the information if they are happy for one individual to have access to the information, but not for it to be put into the public domain. 

Q:  So you might have a situation in which a company says when consulted, ‘there’s no way we want that going to a rival,’ at which point, on consideration, the authority decides to withhold it under the FOIA, but release it on other terms?

A:  I think you might be muddling the concept of release under the FOIA with private disclosure.  The distinction is between public and private disclosure.  And if it’s private disclosure I would consider that a public authority needs to consider how far that can be sustained.

Q:  It seems that there is an awful lot of commercial information available under the US Act.  Do you think we will have a similar situation in the UK?

A:  We won’t get the preponderance of commercial applications as in the UK.  In the US the Act has been used primarily by business for commercial information.  We certainly anticipate a considerable proportion of requests for commercial information, but I don’t think there will be the same preponderance as in the US.

Q:  Why do you think that is?

A:  Because of the breadth of our act across the whole of the public sector and the nature of political and public interest in the affairs of government, and other public sector bodies, is such that there will be a broader range of requests for information.  I think that, in particular, we’ll see a considerable number of requests for environmental information and one of the challenges of the years ahead will be to ensure that the Environmental Information Regulations are appropriately enforced alongside the FOIA.

Q: Of course the EIRs cover private companies as well.

A: There is a slightly different definition of public authority, but the EIRs don’t directly affect all private companies.

Q:  No, but they apply to private companies with a public role, such as water companies and so on.

A:  Yes.

Q: So you will occasionally have to lock horns with the privatised utilities.

A:  Yes, we anticipate that.

Q:  Obviously there has been a great programme of education of public authorities, has that been extended to such private companies?

A:  They haven’t been excluded, but we haven’t put on particular events for the utility companies.  We have engaged though with a number of organisations, which, if not private themselves, then engage very heavily with the private sector.

Q:  I’m afraid we’ve run out of time, but many thanks for answering these questions.

A:  My pleasure.  Thank you.