Parliamentary and Health Service Ombudsman / Improving Services / Selected Cases / Selected investigations completed July 2001-January 2002, No. A.30/01

Mr C asked for the documentation and evidence that was presented by the then Department of the Environment, Transport and the Regions (DETR) to the Building Regulations Advisory Committee (BRAC) regarding a proposal to amend part of the Building Regulations. Mr C also asked for a copy of a submission to the Minister of State in which BRAC had made their final recommendation, and details of a meeting at which a presentation had been made to BRAC by a particular federation of manufacturers (Federation B). DETR told Mr C that all BRAC papers were confidential and could not be released. They did not cite the Code when corresponding with Mr C but, following the Ombudsman's intervention, they cited Exemption 2. The Ombudsman found that Exemption 2 could be correctly applied to the Minister of State's submission and most of the minutes of BRAC meetings, but not to a technical paper given to BRAC to aid their deliberations. Moreover, some of the information sought by Mr C had been provided to BRAC by Federation B. At the Ombudsman's instigation DETR asked Federation B for their consent to release that information. Federation B agreed that the information they had provided could be released. The Ombudsman criticised DETR for several aspects of the way in which they had handled Mr C's request for information. He partially upheld the complaint.

9.1 Mr C complained that the Department of the Environment, Transport and the Regions (DETR) refused to supply him with information which should have been made available under the Code of Practice on Access to Government Information (the Code). I have not put into this report every detail investigated by the Ombudsman's staff but I am satisfied that no matter of significance has been overlooked. DETR is now the Department for Transport, Local Government and the Regions but, for the sake of simplicity, I have retained the earlier description throughout this report.

Background

9.2 The Building Regulations are approved by Parliament and deal with the minimum standards of design and building work for the construction of domestic, commercial and industrial buildings. The Building Regulations contain a list of requirements, referred to as Schedule 1, which are designed to ensure the health and safety of people in and around buildings; to provide for energy conservation; and to provide access and facilities for disabled people. In total there are 13 parts to these requirements and each part is supported by a separate document called an "Approved Document" which contains practical and technical guidance on ways in which the requirements can be met.

9.3 The Building Regulations Advisory Committee (BRAC) is defined as a non-executive, advisory, non-departmental public body. It was originally established in April 1962 under section 9 of the Public Health Act 1961 (now section 14 of the Building Act 1984) to advise the Secretary of State on the exercise of his powers to make Building Regulations and on other subjects concerned with Building Regulations in England and Wales. Appointments to BRAC are made jointly by the Secretary of State for the Environment, Transport and the Regions (now the Secretary of State for Transport, Local Government and the Regions) and the Secretary of State for Wales. The Secretaries of State seek to achieve, from among the members, a comprehensive and balanced mix of technical, legal, administrative and academic advice. The objective is also to ensure that the membership reflects the interests of Building Control Bodies, the consumer, and the building industry and property interests in general. Members are appointed for their personal expertise, rather than as representatives of particular organisations or interests.

9.4 The main work of BRAC is conducted in five plenary committee meetings per year while advice on more technical aspects of particular subjects is developed and carried forward through working parties each chaired by a BRAC member. The membership of the working party comprises BRAC members, co-opted persons with appropriate specialist expertise, when needed, and officials from Government departments which have an interest in the work of the particular working party. Officials from the Building Regulations Division of DETR are also present and act as the secretariat for BRAC, the main tasks of which involve the circulation of agendas and papers, the taking and preparation of minutes, and control of the budget.

9.5 On 15 December 1997 a consultation document was issued which proposed to amend the guidance given in Approved Document B (Fire Safety). Part of that consultation document concerned the definitions of thermoplastic materials. TP(a) and TP(b) are terms given to describe certain types of thermoplastic materials which are often used in the production of lighting diffusers. Research had shown that thermoplastics designated TP(a) have a better reaction to fire than those of the TP(b) type. The consultation therefore proposed that one of the definitions of TP(b) should be removed from the Approved Document, effectively excluding those materials with the greatest perceived risk.

9.6 The consultation period ended on 31 March 1998. The BRAC Part B Working Party (the Working Party) was then set up to consider the comments received during the consultation period as well as further representations on particular topics received after the consultation period ended. Following 10 separate meetings of the Working Party they recommended that the second definition of TP(b) be retained within Approved Document B (Fire Safety). The main BRAC agreed the text of the Approved Document and then submitted it to the Secretary of State for DETR who formally approved the document. The new guidance took effect on 1 July 2000.

The complaint

9.7 Within the lighting diffuser industry there was a strong and vocal divide between those who supported the proposal to delete the second definition of TP(b) and those who were against that proposal. Federation A represented manufacturers of TP(a) diffusers and supported the proposal to delete the second definition of TP(b). On 10 September 2000, Mr C, in his capacity as Chairman of that Federation, wrote to DETR and asked for a copy of the official report, documentation and evidence presented to the Working Party which supported the proposal to delete the second definition of TP(b) from the Approved Document B (Fire Safety). He also asked for a copy of the submission to the Minister of State for DETR in which BRAC made their final recommendation. DETR replied on 13 October. They said that BRAC papers, including minutes and notes, were produced on a "confidential to Members only" basis and they were therefore unable to provide Mr C with the information requested. They said that submissions to Ministers were similarly confidential and could also not be disclosed.

9.8 On 20 October Mr C repeated his request for the evidence put before BRAC which supported the proposal to delete the second definition of TP(b). He also asked for details of a meeting in which members of Federation B who, as representatives of the manufacturers of TP(b) diffusers, made a presentation to the Working Party. Mr C requested the notes of that meeting as well as a detailed report of the Federation B presentation. He also asked for the name of the presiding official at the meeting. Mr C repeated the latter request for information in his letter to DETR of 29 October. DETR wrote to Mr C on 17 November and said again that minutes or notes of BRAC meetings were produced on a "confidential to Members only" basis and were not therefore available for disclosure.

9.9 In a further letter to DETR on 15 November, Mr C requested a copy of the transcript of Federation B's presentation to the Working Party. He also asked for a copy of Federation B's letter to DETR seeking a meeting with the Working Party as well as DETR's reply. He repeated his request for the name of the presiding official at the meeting. Mr C replied on 22 November by repeating his request for the transcript of Federation B's presentation. He also asked for confirmation that Federation B requested the meeting by letter and that DETR had replied in the same way.

9.10 On 15 December DETR replied to Mr C. They said that the Chairman of the Working Party was a member of the main BRAC Committee and there was, therefore, no "presiding" official at the Working Party meetings, merely a small number of officials whose task it was to serve and support BRAC. They said that Federation B's letter requesting the meeting was private and confidential and remained the property of its author. They said they were unable to provide Mr C with a copy of that letter without prior approval from Federation B. They continued by saying that they could not provide a copy of the transcript of the Federation B presentation because no such "transcript" had been taken. Mr C wrote to DETR on 22 January 2001 to express his concern that there was no transcript of Federation B's presentation. He requested the "full facts" relating to the issue.

Departmental comments on the complaint

9.11 In offering his comments on the complaint, the Permanent Secretary of DETR began by outlining BRAC's role in the development of the Building Regulations, which he believed lay behind the need for its deliberations to be kept confidential. He said that the work of BRAC and its working parties was undertaken on the understanding that the advice given was not intended for public circulation, which enabled the debate to be frank and open. In giving advice or contributing to the discussions of a BRAC working party, members put forward their own views, which may not necessarily be those of their company, or representative of any association of which they are a member. If the record of the meetings were to be made public, the comments would necessarily be more guarded and less helpful. The Permanent Secretary said that in general, the work of BRAC working parties was the consideration and discussion of a range of technical information, the disclosure of which would harm the frankness and candour of internal discussion, as referred to in Exemption 2 of the Code.

9.12 The Permanent Secretary continued by saying that Mr C's request for a copy of the submission to the Minister of State, in which BRAC made their final recommendation, also fell within the remit of Exemption 2 because it related to guidance and information whose disclosure could harm reliable and unbiased discussion in the future.

9.13 The Permanent Secretary said that a considerable effort had been made to answer Mr C's many letters to DETR and that his department had endeavoured to provide him with detailed reasoning as to why it was decided to retain the second definition of TP(b) lighting diffusers within Approved Document B (Fire Safety). However, in relation to the provision of supporting information, they had made it clear that the majority of the information he had requested was not for general release. The Permanent Secretary was satisfied that his department's decision not to provide Mr C with the information requested was correct.

Jurisdiction

9.14 Complaints considered under the Code are investigated at the Ombudsman's discretion and in accordance with the procedures set out in the Parliamentary Commissioner Act 1967. Section 4(1) of that Act reads:

'Subject to the provisions of this section and to the notes contained in Schedule 2 of this Act, this Act applies to the government departments, corporations and unincorporated bodies listed in that Schedule'

BRAC is not listed in Schedule 2 and it is not therefore within the Ombudsman's jurisdiction. However, the Cabinet Office's Guidance on Interpretation of the Code states that while advisory committees themselves are not usually within the Ombudsman's jurisdiction, he may be asked to investigate complaints concerning refusal by departments to disclose expert advice on which they have relied when making their decisions. It is on that basis that I have undertaken to investigate Mr C's complaint against DETR.

Exemptions

9.15 Exemption 2 of the Code is headed 'Internal discussion and advice' and reads:

'Information whose disclosure would harm the frankness and candour of internal discussion, including:

- proceedings of Cabinet and Cabinet committees;

- internal opinion, advice, recommendation, consultation and deliberation;

- projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

- confidential communications between departments, public bodies and regulatory bodies.'

9.16 I also draw attention to Exemptions 13 and 14, which although not quoted by DETR, are ones that I have considered during my investigation. Exemption 13 is headed 'Third Party's Commercial Confidences' and reads:

'Information including commercial confidences, trade secrets or intellectual property whose unwarranted disclosure would harm the competitive position of a third party.'

9.17 Exemption 14 is headed 'Information given in Confidence', the relevant parts of which read:

(a) Information held in consequence of having been supplied in confidence by a person who:

• gave the information under a statutory guarantee that its confidentiality would be protected; or

• was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure.

(b) Information whose disclosure without the consent of the supplier would prejudice the future supply of such information.

9.18 The above exemptions are subject to the harm test in the preamble to Part II of the Code:

'References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.'

9.19 When providing his comments on the complaint, the Permanent Secretary enclosed copies of all the documents and papers which DETR said contained the information requested by Mr C. They were as follows:

(i) A technical paper dated 8 February 1999 which was given to the members of the Working Party to aid in their deliberations in relation to the TP(b) issue;

(ii) the submission to the Minister of State in which BRAC made their final recommendation;

(iii) copies of four sets of minutes from the Working Party in which the issue of TP(b) lighting diffusers were discussed;

(iv) a copy of Federation B's original letter to DETR asking if they could make a presentation to the Working Party.

9.20 In light of Mr C's specific request for information supporting the proposal to delete the second definition of TP(b), I asked DETR whether there was any further information put to BRAC regarding this matter. In reply, they said that, apart from the technical paper (see (i) above), the members of the Working Party were not given any additional reports or evidence. They said that the members were, however, aware of the work that was undertaken by DETR prior to the consultation, which included a research project that looked into the behaviour of thermoplastic lighting diffusers. However, they said that work was referred to on page 9 of the covering letter which was sent out with the 1997 consultation document to all the consultees, including Mr C. Moreover, they said Mr C was directly involved with the research work that looked into the reaction-to-fire behaviour of thermoplastic lighting diffusers and he would therefore already have had access to that information. As Mr C only requested the information that was put before the Working Party I am satisfied that, for the purposes of my investigation, I need only consider the disclosure of the technical paper and not any information of which the members (and Mr C) were previously aware.

Assessment

9.21 In assessing this complaint there are two aspects I have to consider: the general handling of Mr C's complaint, and the substantive issue of whether or not the information requested should be released. I turn first to the release of information and in doing so I should stress that the Code gives an entitlement only to information, not to documents (although the Ombudsman's experience has shown that, on occasion, the simplest way in which to meet a request for information is to release the actual document concerned), and it is on that basis that Mr C's complaint has been examined.

9.22 DETR have cited Exemption 2 of the Code as justification for not releasing the information requested by Mr C. They argue that the disclosure of information relating to the work of the BRAC working parties would harm the frankness and candour of internal discussion by making the members' comments more guarded and thus less helpful. The question in this case, therefore, is whether the release of the information relating to the work of the Working Party would adversely affect the frankness and candour of the advice offered by future BRAC working parties. I have to say that I recognise the strength of DETR's argument. The purpose of Exemption 2 is to allow departments the opportunity to consider matters, particularly those which are likely to prove contentious, on the understanding that their thinking will not be exposed in such a way as to fetter their deliberations by inhibiting the frank expression of opinion. I accept that the value of the advice offered by BRAC and its working parties, which depends upon candour for its effectiveness, would be substantially less if it were thought that it would be made available to a wider audience. To my mind, BRAC must be allowed to discuss issues without having to worry that their deliberations would be made publicly available. I am therefore of the view that the considerations of the Working Party are covered, in principle, by Exemption 2.

9.23 Exemption 2 does, however, incorporate a harm test, which poses the question: would the harm that might be caused by disclosure of the protected information be outweighed by the public interest in making it available? It could be argued that because the consultation period is now over, no harm can be caused by making available information relating to the wider deliberative process by which the decision to retain the second definition of TP(b) was taken. However, although the consultation period is now over and the Approved Document B (Fire Safety) has retained the second definition of TP(b), this is clearly still a very sensitive issue, as can be seen from the amount of correspondence between Mr C and DETR. I am also aware that DETR have written to Mr C on several occasions and provided substantive responses to his request for an explanation of BRAC's recommendation. With this in mind, I do not consider that the public interest in having access to the opinion and advice contained within BRAC papers is strong enough to outweigh the potential harm to the frankness and objectivity of future advice which might result from its disclosure. I accept therefore that Exemption 2 should apply to that information relating to BRAC's internal considerative process.

9.24 How does this relate to the information requested by Mr C? I accept that, in general, the information contained within the minutes of the Working Party meetings fall within Exemption 2. The minutes are essentially an account of the Working Party's deliberations and contain the members' opinions, advice and recommendations. Similarly, the submission to the Minister of State also provides advice and recommendation from BRAC about the TP(b) issue. I accept, therefore, that the information contained within the submission also falls within Exemption 2.

9.25 However, the minutes of the Working Party meetings also include an account of the presentation made by Federation B. While I accept that the discussion following the presentation is covered by Exemption 2, the actual presentation contains information that was only provided by Federation B. As such, I do not consider that Exemption 2 can be held to apply to that information. However, it could, in principle, be covered by either Exemption 13 or Exemption 14 (see paragraphs 9.16 and 9.17). Central to both of those exemptions is the issue of the consent of the provider of the information. There is no evidence in the papers examined by my staff to show that DETR had sought to gain the consent or otherwise of Federation B before notifying Mr C that the information could not be disclosed. I therefore invited them to write to Federation B to see if they had any objection to the minutes of their presentation to the Working Party being disclosed to Mr C. At the same time I invited DETR to ask whether Federation B had any objection to the release of the correspondence between themselves and DETR, which had also been requested by Mr C. Federation B responded by saying that they were content for DETR to release the notes that were taken of their presentation to the Working Party. Moreover, they had no objection to DETR releasing copies of their letter of 25 June 1998 in which they asked to make a presentation to the Working Party or DETR's reply of 27 November 1998 in which DETR agreed to Federation B's request. I see no reason under the Code why that information should not now be disclosed to Mr C and I so recommended to the Permanent Secretary. However, I must criticise DETR for their failure to establish whether Federation B were content to release the information requested before replying to Mr C.

9.26 Mr C also asked for the report, documentation and evidence put before the Working Party which supported the proposal to delete the second definition of TP(b). As stated at paragraph 9.20, I accept that the only such evidence was a technical paper which DETR said had been given to the Working Party to help with their deliberations. The information contained within the technical paper is essentially factual and includes details of the number of comments made on the proposed deletion of the second definition of TP(b) as well as a short paragraph about the reasons behind the proposal. As DETR have said, this document was given to the members of the Working Party to aid in their deliberations in relation to the TP(b) issue. The paper does not contain any advice, comment or opinion but only factual information, which is not covered by Exemption 2. As such, I do not consider that any of the information contained in that document is exempt from disclosure under the Code. I therefore recommended to the Permanent Secretary that the information contained within the technical paper relating to TP(b) thermoplastics also be released to Mr C.

9.27 I turn now to DETR's handling of Mr C's request. I find it a matter of concern that, throughout the extensive correspondence with him, DETR made no mention of the Code. It has been the case since the Code came into operation in 1994 that all requests for information should be treated as if made under it, irrespective of whether or not the Code is referred to. The Ombudsman has also said that it is good practice, if departments refuse requests for information, for them to identify in their responses the specific exemptions in Part II of the Code on which they are relying. In refusing to provide the information requested by Mr C, DETR simply stated that the information concerned was "confidential to Members only". That is not a sufficient justification for withholding information under the Code. If DETR did not wish to disclose the information requested by Mr C they should have informed him of the Code exemption(s) they were relying upon in order to justify such non-disclosure. They should also have made Mr C aware of the possibility of a review under the Code and of the possibility of making a complaint to the Ombudsman if, after completion of the review process, he was still dissatisfied. I criticise DETR for their failure in this regard.

9.28 I also think it necessary to highlight two particular aspects of the way DETR handled Mr C's requests for information which also attracts my criticism. The first is DETR's response to Mr C's request for the name of the presiding official at the Working Party meeting of 22 February 1999; the second, his request for a transcript of FEDERATION B's presentation to that particular Working Party meeting. In both cases DETR were less than helpful in the way they responded to Mr C. DETR stated in their letter of 15 December 2000 that the Chairman of the Working Party was a member of the main BRAC committee and that there was therefore no presiding official at that meeting. However, I believe it would have been helpful to Mr C, and more in keeping with the Code, if DETR had given him the name of the most senior DETR official at that meeting, whether they were presiding or not. It seems to me that that was the information Mr C was seeking. The Code is clear that the approach to the release of information should in all cases be based on the assumption that information should be released except where disclosure would not be in the public interest. I see no reason under the Code why DETR should not now tell Mr C the name of the most senior DETR official at the meeting at which Federation B made their presentation. I so recommend.

9.29 DETR's response to Mr C's request for a transcript of Federation B's presentation to the Working Party was equally unhelpful. He requested, on different occasions, notes of the meeting, a detailed report of the presentation, and a transcript of the presentation. DETR's response was that they could not provide Mr C with a copy of the transcript of the Federation B presentation because no such "transcript" (DETR's emphasis) was taken. However, as I have stated above, the minutes of the meeting contain a fairly substantive account of Federation B's presentation. I believe DETR could and should have explained to Mr C the exact nature of the information they did hold on the Federation B presentation, even if they decided that some or all of it could be withheld from disclosure under one of the exemptions in Part II of the Code. I criticise DETR for their failure to be more open with Mr C.

9.30 In reply, the Permanent Secretary of DETR said that he felt the report offered a fair and balanced view of the events leading up to the investigation and that valuable lessons had been learnt as a result. He said that the specific recommendations relating to the release of information to Mr C would now be implemented. In respect of the criticisms made against his Department, the Permanent Secretary regretted that they did not communicate more effectively with Mr C. In his consideration of the situation the Permanent Secretary was aware that Mr C had written to the Department and Ministers in excess of thirty times over a thirteen month period and, as his letters were very lengthy and detailed, replying had been an exacting task. However, the Permanent Secretary recognised that the matter could have been handled more openly and, as a result, he would remind the relevant officials of the need to be aware of the Code and how it should be applied.

Conclusion

9.31 I found that the submission to the Minister of State and most of the information contained within the minutes of the Working Party meetings could be withheld by DETR under Exemption 2 of the Code. However, there was no reason why the remaining information requested by Mr C should not be released to him. I was critical of several aspects of the way in which DETR handled Mr C's request for information but I regard their willingness to accept my recommendations and disclose the relevant information as a satisfactory outcome to a partially justified complaint.

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Last updated: 4 April 2005