Home Affairs Committee evidence on work of the Information Commissioner's Office

An uncorrected transcript of the evidence given by the Information Commissioner, Christopher Graham, and Assistant Commissioner, Jonathan Bamford, to the Home Affairs Committee on 9 March 2010 has been published.

Q4 Mr Winnick: Thank you very much indeed. In January of this year The Times noted that your office has limited resources, no powers to speed up the freedom of information process and that the Office is limited by not having the final say in freedom of information appeals. Do you recognise these constraints? Do you think they are unfair, or do you think the comments were unfair?

Mr Graham: I do not believe all I read in the newspapers. I would comment that all public authorities have limited resources. We are unusual in that there is some buoyancy in our resources, at least on the data protection side, because of the introduction of a tiered notification fee. The largest concerns now pay £500 instead of £35 and that is giving us more money to spend on the data protection side of the business. On the freedom of information side of the business we have had a spectacularly productive year. We are closing outstanding cases, getting through the backlog, and this is despite the fact that there is a great public appetite for using the Freedom of Information Act - good. It does mean that applications to the ICO are up by more than 20%, but case closures are up by more than 40%. This is not an organisation that is suffering from restraint. On powers, next month we see greatly strengthened powers on the data protection side - the introduction of civil monetary penalties, the ability to audit government departments without consent. There is an awful lot going on at the ICO.
...
Mr Graham: I am going to ask Jonathan to comment on the data protection side in a minute, but the great challenge when I took on the role of Information Commissioner at the end of June last year was to tackle the backlog in freedom of information cases, and this we are doing. This is a week of tremendous activity because we are determined to clear some of the old cases before the end of our performance year and I am confident that in our annual report we will be able to tell a very good story of the speeding up. Freedom of information cases, if they come to us, which is on appeal, are almost certainly going to be difficult and intractable, but what we have succeeded in doing over the past few months is to send a message to public authorities that we are on their case, and so there is no question of just refusing information because you think it will take the ICO a long time to get round to it. If we were in a vicious circle, we are now in a positive cycle where the public authorities realise that the ICO is very alert and they had better get on with it and that is having a very beneficial effect.

The Commissioner was also asked about the Private Members' Bill introduced by David Maclean MP, which sought to exempt Parliament from the scope of the FOI Act and create a new exemption for MPs' communications with public authorities, by David Winnick MP who was one of the MPs who tried to block the Bill in the Commons:

Q9 Mr Winnick: Mr Graham, Parliament makes its own rules and the electorate will decide, as always, accordingly, but if Parliament had gone ahead and exempted itself from the freedom of information legislation, which at one stage was a possibility - there was a Private Members' Bill - what do you think the effect would have been generally in the media and on the public?

Mr Graham: That is a very hypothetical question.

Q10 Mr Winnick: It is bound to be, is it not?

Mr Graham: The controversy was before my time. If we are going to re-run history, I suppose the great might-have-been is what would have happened if Parliament had been inclined to go with my predecessor's steer and had published the expenses under more general headings. This, of course, was before we knew about flipping of second homes, so the regime might not have lasted very long, but it was Parliament's determination to challenge the ruling of the Information Commissioner and to challenge the ruling of the Information Tribunal and take it to the highest court in the land, and the highest court in the land, as you know, turned round and said, "Publish the lot", which was more than the Information Commissioner had requested. If you say, therefore, "How would it have gone?", I think you would have drawn the wrath of the public upon yourself if you had exempted yourselves. I think it would have been better if, in not exempting yourselves, you had realised that this was real and the law that applied to everybody else also applied to Parliament, but it is easy to be wise after the event.

Mr Winnick: Wisdom, fortunately, prevailed and you know what happened.

 Read the transcript in full here.

Parliament to remain covered by FOI

'The Governance of Britain' Green Paper on constitutional reform published earlier this month has relatively little to say on freedom of information but did make it clear that Parliament would remain within the scope of the FOI Act:

"In 2000 the Government introduced the Freedom of Information Act, which was fully implemented in 2005. It has opened up the public sector to unprecedented scrutiny. Over 110,000 public bodies are covered by the Act, and importantly the House of Commons and House of Lords are among them. It is right that Parliament should be covered by the Act. The Government welcomes the recent debate about the confidentiality of MPs’correspondence with their constituents.The Secretary of State for Justice and Lord Chancellor will be working with the Information Commissioner in the coming weeks to produce guidance to public authorities to ensure that they apply the Act in a way that balances openness with the need to protect the privacy of constituents. "

Read the full document (pdf)

Commons Committee rejects FOI restriction plans

Constitutional Affairs Committee press notice No. 35:

"An influential Committee of MPs has called on the Government to scrap its plans to restrict freedom of information and has criticized the Bill to exempt MPs from freedom of information rules.

In a report released today, Monday 25 June 2007, the Constitutional Affairs Select Committee says Ministers should take the opportunity afforded by their consultation on proposed changes to the charging regime for Freedom of Information (FOI) requests to abandon the “unnecessary, unpopular and undesirable” reforms.

The Committee says Government has not adequately weighed up the balance of costs and benefits to public authorities and the public of providing greater access to information and openness.

The Committee concludes:

“There is no objective evidence that any change is necessary. The cost-benefit analysis provided with the Government's consultation papers is incomplete. There is clear evidence that the proposed amendments could be open to manipulation and abuse. There is no sign that any consideration has been given to proper funding of the independent review process. The proposed measures have the scope significantly to reduce the flow of information into the public domain. We recommend that the proposed new charging regime be withdrawn.

“The proposed regime could result in public authorities avoiding answers to embarrassing, contentious or high-profile cases as the number of internal consultees rises in proportion to the sensitivity of particular requests.“

The Committee says the Bill for an exemption from the FOI Act, passed by the Commons but currently stalled in the House of Lords, “would be contrary to the culture of openness which we have argued should prevail in the public service.”

Rt Hon Alan Beith MP, Chairman of the Committee, said:

“The Freedom of Information Act works. It enhances the rights of the public. Neither the Government nor MPs should be seeking to limit its effectiveness, and there is no evidence here to support either the Government's proposals on fees or the Bill. I am hopeful that both will now be dropped.”

The Committee also expresses concern that Information Commissioner's Office (ICO) does not have sufficient resources to deliver an effective FOI complaints resolution service - especially with the predicted increase in complaints if the proposed fees changes were brought in - and repeats its call for the ICO to be made independent of Government and instead funded by and accountable to Parliament. “We question whether it is appropriate for the Ministry of Justice to set the funding levels for the independent regulator and thereby directly influence its capacity to investigate complaints.” "

Read the Committee's full report:
HTML version
Pdf version

Lords select committee report on Maclean Bill

The Lords' Constitution Committee, which examines the constitutional implications of all public bills coming before the House, has published a report on the Freedom of Information (Amendment) Bill. The Committee's main conclusions are:

"In several respects we believe that the Freedom of Information (Amendment) Bill does not meet the requirements of caution and proportionality in enacting legislation of constitutional importance."

"During the passage of the Freedom of Information Bill in 2000 there was careful consideration of whether the administrative functions of the House of Commons and House of Lords should or should not be exempt from the Act. The decision was taken that they should not be exempt. We are unaware of any compelling case, based on constitutional principle, to change that decision. We take the view that voluntary undertakings, even those given by the Speaker of the House of Commons or those that might be given by the House of Lords authorities in the future, cannot be regarded (from a constitutional point of view) as a satisfactory substitute for a legally enforceable right to access to information."

Protecting personal information of members of the public from disclosure

"We believe that the House may be in a better position to assess the nature and extent of the problem, and any proposed remedies, in the light of a report by the Information Commissioner."

"The disclosure of correspondence between members of both Houses of Parliament and public authorities on the subject of individuals is a serious matter and should be explicitly prohibited. However, we do not believe that this mischief is addressed in a sufficiently proportionate and specific manner in clause 1(3) of the bill."

Read the full report (Pdf)

Maclean Bill fails to progress in Lords

David Maclean MP's Freedom of Information (Amendment) Bill has so far not found a sponsor in the House of Lords and cannot now be introduced before the summer recess. If a sponsor is found, it is possible that the Bill could still be introduced in October. However, time is running out and the government would probably have to make time available for it, if it were to stand any chance of making progress. It seems unlikely that this would happen while the bill is in its current form. But it is conceivable that someone might still seek to take the bill forward in a highly truncated form (eg by proposing to restrict it to deal solely with MPs' correspondence on behalf of individual constituents).

During Business Questions on Thursday the Leader of the House Jack Straw announced that detailed guidance would be issued to public authorities on requests involving MPs' constituency correspondence. This seems to suggest that the government recognises that the Bill will not reach the statute book.

Business Questions:

"Martin Salter (Reading, West) (Lab): How does the Leader of the House intend to ensure that correspondence from MPs on behalf of their constituents is not subject to public disclosure if the Freedom of Information (Amendment) Bill fails to make progress in the other place?

Mr. Straw: We are taking every step, in consultation with the Ministry of Justice and with a great deal of consideration by the House of Commons Commission and the Department of Finance and Administration in this place to ensure that it is made absolutely clear to public authorities that where they receive requests for the disclosure of correspondence that involves Members of Parliament, first, in every case the Member of Parliament must be consulted and, secondly, it is probable that in almost every case such correspondence is covered either by the exemptions, which are absolute in respect of confidentiality, or by data protection or by many of the other qualified exemptions within the Freedom of Information Act 2000. Detailed guidance has been drafted. I went through it again last night. Opposition Front-Bench spokesmen are also being consulted. It should lead to a better situation than we faced before. I underline that Members of Parliament, for very good reasons, are not public authorities and therefore are not subject to freedom of information legislation. That was agreed without argument eight years ago.

Mr. David Heath (Somerton and Frome) (LD): That guidance will be very welcome in explaining the position to authorities that do not understand the existing law.

....

Mr. David Winnick (Walsall, North) (Lab): If indeed the Freedom of Information (Amendment) Bill is dead and, I hope, buried for ever, my right hon. Friend should be aware that if there is a genuine problem over the disclosure of MPs’ correspondence, I should support a measure that will deal with it. It is a pity that the problem was not dealt with at the beginning, rather than trying to exempt Parliament from freedom of information provisions. Perhaps the Data Protection Act 1998 should be considered with regard to MPs’ correspondence.

Mr. Straw: I am grateful to my hon. Friend for his conciliatory words. As the right hon. Member for Maidenhead (Mrs. May) knows, as soon as the issue was raised with me—by two Opposition Members who represent Kent constituencies—I took it up. I held meetings with them and the Information Commissioner, which involved the other parties, too, to try to sort through things. However, the difficulty that had arisen—not caused by the House or the then Department for Constitutional Affairs—was that public authorities were getting ready to issue correspondence without so much as a by your leave from Members of Parliament, still less any consideration of the exemptions that might apply. As there was not a word of argument about the fact that Members of Parliament, as Members of Parliament, should not be classified as public authorities for the purpose of the Act, such an action would have been very serious indeed and would have destroyed the relationship between Members and their constituents, which is fundamental to the way in which we operate on their behalf. That is the issue. If we can arrive by other means at the end that everybody sought, we shall all celebrate."

Constituents' privacy
Some recent PQs

4 Jun 2007 : Column WA157

Lord Lester of Herne Hill asked Her Majesty's Government:
What assessment they have made of the extent to which the Data Protection Act 1998, the Freedom of Information Act 2000 and the Human Rights Act 1998 contain appropriate and necessary safeguards to limit or restrict the right of public access to information communicated to public authorities by Members of Parliament in their capacity as such, for preventing the disclosure of information received in confidence, and to respect the right to private life and correspondence. [HL3926]

The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Ashton of Upholland): The Data Protection Act 1998 and the Freedom of Information Act 2000 were drafted by this Government with the need to protect confidential and personal information in mind. There are provisions within the Acts to protect such information where appropriate. The Government have not made a separate assessment of the safeguards within these Acts. The Human Rights Act 1998 contains provisions to give further effect to the convention rights, which include the right to respect for private life under Article 8 of the European Convention on Human Rights.

4 Jun 2007 : Column WA158

Lord Lester of Herne Hill asked Her Majesty's Government:
Whether they have reviewed the extent to which the Data Protection Act 1998 or the Freedom of Information Act 2000 need to be amended in the public interest so as further to limit or restrict the right of public access (a) to information about the activities of Members of Parliament, or (b) to information communicated to public authorities by Members of Parliament in their capacity as such; and, if so, for what reasons and in what respects are such amendments needed. [HL3927]

Baroness Ashton of Upholland: The Government have not made a review of the kind suggested by the noble Lord. There are appropriate provisions already in both Acts to protect sensitive information.

Lord Lester of Herne Hill asked Her Majesty's Government:
Whether they have received notification of any instances in which personal or confidential information communicated to public authorities by Members of Parliament in their capacity as such has been improperly disclosed, whether in breach of the Data Protection Act 1998 or the Freedom of Information Act 2000, or otherwise. [HL3928]

Baroness Ashton of Upholland: The Government have not received notification of any improper disclosure of personal or confidential information communicated to public authorities by Members of Parliament in their capacity as such.

Lord Lester of Herne Hill asked Her Majesty's Government:
What remedies are available to individuals whose right to respect for their personal privacy has been infringed by virtue of the unauthorised disclosure of personal or confidential information about themselves, communicated to public authorities by Members of Parliament in their capacity as such. [HL3929]

Baroness Ashton of Upholland: An individual has the right to remedies following an unauthorised disclosure of personal information only where such a disclosure has been proven to contravene the relevant legislation (for example, the Data Protection Act 1998) or the common law (for example, where a duty of confidence is owed in respect of the information in question).

Prime Minister's Questions

Q4. [140252] Mr. David Winnick (Walsall, North) (Lab): Does my right hon. Friend accept that among the important reforms and changes that have occurred on his watch over the past 10 years is freedom of information? Why should Parliament alone, of all the public bodies in this country, be able to contract out of a law? Can my right hon. Friend explain why the two Front Benches are supporting the private Member’s Bill, when it should be thrown in the dustbin?

The Prime Minister: Because I have enormous respect for my hon. Friend and because this may be the last time that he asks me a question at Prime Minister’s questions, I do not want to disagree with him—but if I were pushed to, I might. It is important—and this has been made clear—that on matters such as expenses, MPs continue to be very open. There is a consensus on that. A huge amount of scrutiny is given by the House about Members of Parliament and I do not think we should apologise for what we do in the House.

See Today in the Commons

Thanks to Paul Francis for pointing this out.

Chief constable attacks Maclean Bill

Brunstom attacks MPs on privacy - BBC

"North Wales Police chief constable Richard Brunstrom has criticised MPs for trying to keep their expenses secret. He described a bill to exempt MPs from the Freedom of Information (FOI) Act as an "almost bizarre" proposal."

"Writing on his blog, Mr Brunstrom described himself as a "passionate supporter of openness and transparency in public life". He said he was "delighted" when the Freedom of Information Act was adopted in 2000, although he called it a "watered-down" version of similar laws in countries like the USA, Canada and New Zealand. "We in the police accept it as the norm, and our democracy is much the better for it," he wrote."

"A private member's bill brought by Conservative MP David Maclean, which proposed exempting MPs from the FOI Act, was an "almost bizarre proposal", according to Mr Brunstrom. He said: "The stated rationale is to protect the confidentiality of MPs' correspondence - a perfectly fair point, were it not for the fact that the existing legislation does this perfectly adequately already."

Chief Constable's Blog.

Maclean Bill returns to Commons on Friday

David Maclean MP's Freedom of Information (Amendment) Bill will be debated again this Friday (May 18th) when its report stage continues in the Commons.

The Bill would remove Parliament from the scope of the Freedom of Information Act and create a new exemption for MPs' communications with public authorities. It has been explained as a measure that would protect the privacy of MPs' constituents.

In a letter to MPs, the Campaign for Freedom of Information has said it believes the bill is unnecessary for this purpose. It says correspondence sent by an MP to a public authority on behalf of a constituent is already exempt under the FOI Act's existing exemptions. Moreover, the Campaign says this does not explain why it is proposed to remove Parliament itself (which does not hold MPs' correspondence) from the FOI Act's scope.

A separate briefing by the Campaign refers to a speech made this week by the Speaker of the New Zealand Parliament calling for New Zealand's Official Information Act to be extended to cover the New Zealand Parliament.

The briefing concludes:

"For Parliament to exclude itself from the Act would send a deeply negative message to the rest of the public sector. It would suggest that MPs consider that the drawbacks of compliance outweigh the public benefit. That would make it harder for those conscientious officials who are trying to persuade their colleagues to adopt an open approach and reinforce the views of authorities which are themselves resisting disclosure."

Today's Times has a joint letter signed by Article 19, the Campaign for FOI, Index on Censorship, Justice, Liberty and Unlock Democracy:

"We hope MPs will not support this measure, which would undermine their accountability to constituents. To pass this Bill would send an extraordinary signal to the public: MPs feel an obligation to pay lip service to transparency but are unwilling to take on serious openness obligations themselves."

And the Telegragh has published a joint letter from the TaxPayers' Alliance, Norman Baker MP (Lib Dem), Douglas Carswell MP (Con), Mark Fisher MP (Lab) and Heather Brooke:

"Sometimes information may be politically embarrassing, but if Members of the House of Commons support this change of culture and the right of taxpayers to know how their money is being spent, then they must set an example and oppose this Bill. Otherwise, the charge of hypocrisy will cause public trust in politicians to erode even further than it already has."

See also:

The credibility of Parliament is at stake, Mark Fisher MP - The Independent

Leading article: Cynical and slippery behaviour - The Independent

Why should MPs vote themselves a privacy law? - The Daily Mail

Latest on the Maclean Bill

The Campaign for Freedom of Information has issued a press release criticising Jack Straw for comments he made during Business Questions on Thursday:

"In the Commons today Mr Straw suggested that MPs' correspondence was "at risk of publication" under the FOI Act, adding that this was never anticipated and "would drive a coach and horses through the relationship that we have with constituents".

Mr Straw continued: "It is all very well for some people to say that there are some exemptions, but the truth is that the way that some journalists and the Information Commissioner are acting means that that intention is not being met in practice".

The Campaign's director Maurice Frankel said that "any suggestion that the Commissioner had ordered or encouraged authorities to release correspondence which MPs had sent on behalf of individual constituents is pure fantasy."

The press release also criticises the Labour Party's PLP Parliamentary Committee for writing to Labour MPs encouraging them to support David Maclean's Bill when it returns to the Commons on May 18.

Read the full press release.