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Home > Publications > Special Reports - Access to Official Information > AOI: Monitoring of the non-statutory codes of practice 1994-2005 > Section 5 - Key themes and conclusions
1. The 11 years in which the Codes have been in operation have been a period of major change in how public bodies approach the whole question of information. Some of those changes have, as mentioned earlier in this report, resulted from legislation. Others have resulted from developments the outcomes of which might not have been widely predicted in the early 1990s - principally the massive growth in the internet: every public sector body has a website and on that website you will find details of the publication scheme which that body has been required to produce under the Freedom of Information Act. Yet there are many who still say that, fundamentally, nothing has changed: whatever might be said in public, in private the same old habits and attitudes persist. Is this, from our experience, true and, if it is, where is there still room for improvement? The culture shift
2. In his evidence to the Select Committee on Public Administration on 11 July 2002 the then Secretary to the Cabinet, Sir Richard Wilson, said: ‘Experience shows that there is no piece of information, however small, that cannot become significant'.[1] This dictum is essentially unarguable and its application has formed part of the traditional, instinctive response of British bureaucracy when faced with a request to release information that it would rather withhold, along with a range of justifications to rationalise that response. This is not, of course, to fail to recognise the reality that there is information that should not be released. Of course there is and, in many of the cases examined by this Office over the years, the original judgement that information should be withheld has been supported. It is however unquestionably the fact that most of these cases began in departments with an instinctive reaction - no. Only once that decision had been taken was a justification then sought in terms of Code exemptions.
3. Under the Codes, and even more so under the Act, that will not do. It is not now possible to operate under the ancient principle of the ‘need to know’; now there is a ‘right to know’, an expectation that information will be released and withheld only if there is a clear justification supported by exemption. It also needs to be recognised that people want information when they want it, not when someone else thinks it appropriate for them to have it: a generation accustomed to instant access to information through the use of search engines will soon become frustrated at the sometimes very slow pace of official response. But, is it actually happening in practice?
4. The evidence is mixed. There is absolutely no doubt that much more information is now freely available in the public domain than ever before. Departments will also, in ways they would not have done ten years ago, frequently respond positively to requests for information that is not routinely released. But this has been fortuitous rather than planned. What there was certainly minimal evidence of during the Code's existence was any attempt from the centre to either publicise it or encourage people to use it. It was launched in a muted, understated way. Some publicity was given to it, and more followed after criticisms from the Select Committee but, once the Freedom of Information White Paper was published in 1997 there was a very strong sense that the Codes were already perceived as history (although they turned out to have another seven years still to run). It is instructive that, in answer to a Parliamentary Question, the Lord Chancellor's Department admitted that spending on publicising the Code of Practice for the years 1998-2001 inclusive amounted to the grand sum of £0.2
5. In such circumstances it is not surprising that the Code was barely known outside the small circle of those with a professional interest in information matters, with the result that investigative journalists and MPs became its chief users. It is hard not to come to the conclusion that, not only did virtually nobody know that the Code existed, but that this state of affairs suited government perfectly well. It certainly was the prime (although not the only) factor in the persistently low caseload that the Office experienced and it could certainly be argued the Codes failed to take off because there was insufficient enthusiasm from those who created them in fostering the climate that would allow them to succeed. Openness lacked champions. Successive Ombudsmen have always taken the view that this was not their role; their role was to police the Codes, although the publicity afforded to some of the Office's Code judgements clearly helped make people more aware of their existence. Promoting the Codes, and encouraging their use, was primarily seen as the role of government. That was not a role that was ever effectively fulfilled. It remains to be seen now whether such champions will emerge within government for the Freedom of Information Act. Lack of expertise
6. In the early days of the Code procedural failures by departments in dealing with Code requests were frequent, despite the central guidance produced by government and, indeed, the assistance of this Office. The most common mistake by far was a failure to recognise the requirement that any information request made after the Code was launched was deemed to be a Code request even if the requester had not referred to the Code or may not even have been aware of its existence. The outcomes were that departments often ignored the Code requirement that requests should be dealt with in 20 working days or, if information was to be refused, paid no attention to the requirement that it should be refused only by reference to particular exemptions: there was also a chronic inability to distinguish between documents and information. As a result poor handling formed a prominent feature of many of the early investigations and departments were frequently criticised for their failure to observe the Code's requirements.
7. As familiarity with the Code increased, major departments which had by now dealt with a good number of requests began to perform much better and the Ombudsman was able to commend departments such as the Ministry of Defence and the Department of Trade and Industry for their appropriate handling. But problems still persisted. Certainly small departments or non-departmental public bodies, which rarely faced Code requests, were often unsure how to deal with them when they did arrive, passing them not infrequently to their legal advisers whose attitude towards the nonstatutory Code was not always couched in the appropriate spirit. Departments with widely dispersed or regionally based workforces had similar problems: while central headquarters might understand the requirements of the Code, local offices might not. A particular difficulty encountered in one or two cases was a tendency to regard the Code not as a given document but as a draft that could be improved upon to meet the specific needs of the organisation: cases A43/96 and A7/98 constitute good examples of that. In many of these cases resources, or the lack of them, also played a part: those dealing with Code requests were often doing so as just one of a wide range of administrative tasks and had, as a result, been able to develop no specific expertise in this area.
8. There is, based on our experience, no substitute for establishing a dedicated resource for dealing with information requests, a resource that can call on legal advice and the advice of specialists when appropriate but which is fundamentally self-standing. This resource needs
to have access to, and the active support of, senior staff in the organisation given that the advice of such senior staff is almost inevitably going to be needed in cases of particular sensitivity. It is probable that only the biggest organisations will be able to afford that and many bodies covered by the Freedom of Information Act, and dealing with information requests for the first time, may be struggling to cope even with the help of the excellent explanatory material and guidance now widely available. Given that most straightforward information about an organisation is now routinely accessible, it is inevitable that individual access requests are much more likely to target areas where there may be a reluctance to release. The judgement and sensitivities required to handle such requests effectively can only be built up over time. The public interest test
9. The operation of the public interest test has proved to be one of the most difficult aspects of carrying out Code investigations. Departments believed that, as the experts in the particular subject covered by an information request, they were best placed to take a view as to where the public interest lay in terms of whether information should be released and they did not always take kindly to that view being challenged. Challenging that position was not always easy for the Ombudsman either. The difficulty was rarely in agreeing whether or not a public interest existed: that was usually common ground. The difficulty lay in making the judgement as to whether or not the harm caused by releasing the information would outweigh that public interest. Such judgements were often very finely balanced. The Ombudsman started from the assumption, which was built into the Code, that information should be released. The general approach then was to look at the case that the department had made for not releasing the information. That case was usually supported by documentation, although an unwillingness to provide such documentation in a number of cases made it much harder for the department to support their case and for the Ombudsman to then fairly assess it. Having considered all the information that was available, the Ombudsman's role was to then make a judgement: in some instances, making
such judgements would have tested the abilities of Solomon.
10. In considering the harm test over the years, Ombudsmen have looked at a number of issues. One has been the age of the information. There is a general assumption that, as information ages, its sensitivity will decrease and it was that aspect of the information sought that played a part in the judgements in such cases as A29/02, A5/03 and A12/03: here the information related to matters that were, in effect, concluded and where it was felt that the risk of harm in releasing the information was now more or less non-existent. However, even information a number of years old may still not be appropriate to release if it relates to matters that remain subject to current sensitivities (A10/04).
11. In general terms, the Ombudsman has recognised the importance of withholding advice and opinion in respect of matters that are, at the time the request was made, matters of public debate and controversy; successive Ombudsmen have always recognised the need for Ministers and officials to be able to think frankly and in private. However, in a number of cases (for example A26/01), through the provision of summaries, it has proved possible with the right approach to release some information even about matters of continuing sensitivity, although not necessarily as much as the requester might have wanted. In this case, which related to British involvement in the Ilisu dam project in Turkey, it was recognised that, while there was much in the files that could not be released, there was nevertheless a public interest that needed to be satisfied and that interest could be appropriately met by providing a summary of the relevant information. This is not the only case in which such an approach has proved possible. Where the Ombudsman has drawn the line has been in the attempt to use Exemption 2 to protect factual information. Consequently, although the Ombudsman has accepted the need to withhold advice in a good number of cases, in many of those same cases there has been a recommendation to release the factual information contained in reports, minutes, letters and briefing papers. By and large, such recommendations have been accepted. 12. Clearly, therefore, the key factors are; is there a public interest and, if there is, would the release of all or part of the information help to inform public understanding or the general debate? If those criteria are met, what might the harm be in releasing the information and would that harm outweigh the public interest? Inevitably, this Office has only seen a small proportion of requests made under the Code: there may be many instances where the public interest assessment has been carried out and information has been released as a result. In the cases this Office has seen, however, it has been too often the case that this exercise has not been done. The response has either been an instinctive reaction that the information should not be released or, as in A25/03 for example, an attempt to secure a class exemption for a particular kind of document and the information contained in it, in this case briefing notes prepared for Ministers in response to Parliamentary Questions. Throughout the duration of the Code one of this Office's most frequent tasks, in respect of those exemptions that involve a harm test, has been to remind departments that they cannot rely on class exemptions, that they must make the case for withholding information each time on its individual merits and that they must start from the basis that information should be released.
13. It is still difficult to be confident that this lesson has been fully learned. The Code was, after all, only introduced in 1994. Many of those required to apply it were brought up in a culture where there was no right to have information released: it is worth issuing the reminder that it has only been since 1998 that individuals have had the right to see information held by departments on manual files about themselves. It is therefore not surprising that Ministers and officials have had difficulty in adapting to a culture where there is now a right to see information that has always previously been concealed. Making that shift is proving to be a slow journey, full of lengthy halts. The impression after a decade of the Code is that, while departments are now much more receptive to arguments relating to the public interest when reminded of the need to consider them, the initial instinct to say no remains close to the surface. Under the Act, the need to consider the public interest is even more specific. It is to be hoped that the policing of the Code by this Office has meant that at least some public sector bodies will have been through their teething pains already over this particular issue. Time will tell. The exemptions
14. During the course of the Code the Office had the opportunity to consider all the exemptions in practice, with one exception; disappointingly, no case ever arose involving Exemption 3 (communications with the Royal Household). Some of these exemptions, in particular Exemptions 2 (internal discussion and advice), 4 (law enforcement and legal proceedings), 13 (third party's commercial confidences) and 14 (information given in confidence) were cited again and again. All of them created their own particular difficulties of interpretation, and those interested in specific exemptions will perhaps find it most helpful to look at individual cases in which they arose; there is however a point to be made about the general approach to the use of exemptions on the basis of the cases we have looked at.
15. In general, the overall verdict on the use of exemptions might be - fair, but could do much better. In the early days the main problem was to persuade departments to think in terms of exemptions at all: when faced with requests departments too often resorted to ‘it's confidential’ or ‘we never release that kind of information’ or just ‘no’, without any explanation. When departments did engage with the exemptions it was sometimes hard to discern the presence of a thought process; it seemed clear that any exemption that looked as if it might have some applicability, however minimal, was simply stuck on. This practice was routinely criticised by the Office, in individual cases and in annual reports, particularly early on. As a result departments, most notably those where Code requests began to form a fairly regular feature of the landscape, started to apply the exemptions as they were meant to. The outcome of this was decisions where there had been a clear attempt to identify the information that the department were not prepared to release and to justify that decision in terms of appropriate exemptions. Such departments were also learning, again following strictures issued in a number of cases, not to apply too many exemptions to the information withheld: if the case was strong enough one, or at most two, exemptions ought to be sufficient to cover it. However, what one might call the early behaviour patterns continued to manifest themselves in those cases involving departments with little or no Code experience.
16. In some cases as well, departments were clearly determined to play the ‘exemptions game’ to the extent that, if the Ombudsman was disinclined to accept the applicability of the exemptions initially quoted, they would find others. This led to departments varying their cases, sometimes as late as the draft report stage. This was deeply frustrating for the Office as this tactic invariably occurred in cases which had already proved difficult and where there had already been delays; the need at a very late stage to look at an alternative exemption (and any
exemptions cited had, to be fair to the department, to be given proper consideration) was not helpful and suggested that the principal aim was to protect the information at all costs. This, again, did not suggest that departments were approaching the Code and the release of information in the right spirit. The ‘exemption 9’ complaints
17. A particular difficulty under the Code, both for departments and for the Ombudsman, has been dealing with the voluminous and vexatious request. The difficulties are in both defining it and in determining how it should be dealt with.
18. Typically, complaints falling into this category do not come from MPs, the media or pressure groups; they come from individuals. Such individuals normally have a long-running dispute against a particular department by which they are personally affected (A9/02), are in dispute with a department over a matter of public policy (A19/04) or are in a dispute with someone else in which a department has an interest or a statutory responsibility (A14/00). Obtaining information is rarely, in such cases, an end in itself: the purpose is either to effect a change in policy or to provide ammunition in furtherance of a dispute. Under the Code motive is not normally a factor to be taken into account. If an individual is not really asking for information but is setting out propositions in the form of questions and inviting the department concerned to agree or disagree with them that has not been, in our view, a legitimate use of the Code. Equally, if a complainant is seeking to obtain information in order to pursue a legal action then our approach has usually been to remind the complainant that the Ombudsman is unlikely to investigate a complaint where there is a clear right to a legal remedy (which it is reasonable to expect him to pursue), particularly as pursuing such an approach is likely to lead to the release of the information sought through the process of discovery. In many of the latter cases the intention is clearly identified by the complainant's need for documents as opposed to information.
19. In defining what constitutes a voluminous request we have always sought to see the extent of the information the complainant has asked for and to try and establish how difficult it would be for the department to find that information and how much doing that would cost them in time or money. In defining what constitutes a vexatious request our approach, in some cases, has been to establish whether or not the complainant is pursuing an agenda beyond the simple pursuit of information. If, for example, the intention is clearly to use the Code to try and effect a change of Government policy then we have argued that there are other, more appropriate, ways of pursuing that objective. In other cases we have reached the conclusion that the complainant has been pushing the issue to such an extent that the Department have done all that they reasonably can in terms of providing information and that it is not reasonable to expect them to do more, as they will never be able to give the complainant satisfaction.
20. The problem with this area is that it is, inevitably, subjective. Individuals described as, or whose complaints are described as, voluminous and/or vexatious never willingly accept that definition. All public organisations have their share of complainants who will pursue particular issues indefinitely if allowed to: to those individuals what they are doing seems perfectly reasonable. As there are no criteria beyond a Wednesbury* test of reasonableness to decide if the categories have been appropriately applied in individual cases, they will continue to take time to resolve and the outcomes will be frequently disputed. This is particularly so because the FOI Act, while referring specifically to the position of the vexatious complaint, does not define it. In the continuing dialogue between the aggrieved individual and the state, this is likely to remain an uncomfortable area of tension. Conclusions
21. Any views the Ombudsman might express after 11 years of policing the Code need first of all to be seen in the light of the fact that the Ombudsman only sees the disputed cases: much information has no doubt been routinely released since 1994 to the satisfaction of all concerned. Many of those disputed cases, too, involved areas of political sensitivity or controversy where there were no simple answers. Matters have been additionally complicated by the fact that, particularly in recent years, the Code has been increasingly used to obtain information for political purposes, a situation not catered for by the Code but one which it would be unrealistic not to expect departments to take into account when considering the possibility of release. However, even allowing for all of that, there has been little evidence to suggest that departments embraced the opportunity for greater openness offered by the Code with much enthusiasm.
22. A number of reasons can be found for this. To begin with it was a non-statutory Code, without the force of legislation. It was launched very quietly, without much encouragement to anyone to use it, certainly without any obvious enthusiasm even from its creators. There was no clear champion within government and virtually no publicity. The Code was also being policed by the Ombudsman whose recommendations in this area, as with all Ombudsman recommendations, were not binding; departments could refuse to implement them if they thought it right to do so. In practice, Ombudsman recommendations are rarely rejected, and such rejections that do occur are usually then subjected to close examination by the Select Committee, but the option exists (and was followed in a number of Code investigations).
23. In addition, the process was slow. A requester would have needed two unsuccessful bites at the cherry with a department before being able, through a Member of Parliament, to approach the Ombudsman. All of this inevitably took time and, as has been said before, when people want information they usually want it now. It would not be surprising, therefore, if some requesters simply decided that they had had enough. Fourthly, and in recent years most crucially, it appeared that departments became increasingly reluctant to release information in those cases where the requester was likely to use it to embarrass the government or to pursue a party political agenda. In a number of highprofile cases this led to lengthy wars of attrition between complainants, departments and this Office which have, at the end of the day, benefited nobody very much.
24. This absence of overt enthusiasm for releasing information, although understandable for all of the above reasons, has been both a pity and a little short-sighted. There are two reasons for this. First, put simply, if you refuse to release information, people think you have something to hide. Everyone other than the zealot recognises that there are cases where, clearly, information should not be released but people find it hard to understand why, when a reasoned case for releasing information has been made, departments will nevertheless not accept it. This is not to say that the Ombudsman is always right and departments always wrong, particularly in areas involving something as intangible as the public interest test. But it is difficult not to conclude, in some cases, that the true reason for not releasing information is not the one given to the Ombudsman under the Code but one informed by quite different considerations. That can only serve to reduce people's faith in the integrity of the entire process.
25. Secondly, what has happened on those occasions when sensitive information has been released? There might indeed have been coverage in the press, some of it doubtless critical, but usually much less negative coverage than in those cases where information has been withheld. What there has not, however, been is any revolution in the streets, any rushing to the barricades. In the vast majority of cases where departments have taken a deep breath and released something they never wanted to release, nothing much has happened: the world has somehow managed to keep on turning. In general, the more information you release, the more positive will be the view held by the public of your organisation, and the less difficulty you are likely to experience under the new legislation. This message still seems a difficult one for some organisations to accept.
What have we achieved?
26. So, to conclude, what has the Ombudsman achieved in eleven years of Code investigations? Three things in particular come to mind. First, we have helped to educate departments into understanding that traditional approaches to the provision of information are no longer acceptable. The expectation now is that information will be provided. Both the Code and the Act are based upon that assumption. Information can only be withheld if the argument for withholding it is linked to exemptions and the complainant will have the opportunity to have the strength of those exemptions tested by an independent person. That is a massive change in a very short timescale and there are still notable pockets of resistance to it. We have, and should recognise that we have, moved a very long way forward.
27. Second, though the cases we have investigated, we have for the first time in this country explored all the key issues that arise in the consideration of freedom of information. We have made extensive forays into the difficult territory of the public interest test. We have looked at class exemptions and set out what [2] Hansard 19 March 2002 (Col 183W) needs to be thought about when citing exemptions. We have looked at how information can be most effectively released. We have established basic good practice for the handling of information requests. We have tried to provide some guidance in the difficult area of vexatious complaints. We have tried to persuade people to follow the spirit, rather than the letter, of the Code. Not all of these attempts have been successful. But, because all of these cases are available in the public domain, they do provide a valuable place from which to start for those coming to these issues for the first time. Much of what we have looked at under the Code will have to be looked at again under the Act. Hopefully, what we have done will provide some useful help and guidance to those engaged in that process.
28. Thirdly, we have assisted in the release of a great deal of information, much of it of a kind not previously accessible to the general public. Some of the cases through which we have achieved this are set out in Sections 4 and 5 and I will not repeat them here. Inevitably, the cases with which we have been involved have often been at the cutting edge. But the Office can be proud of the fact that, through the investigations it has carried out, information of a kind not previously made available has, rightly, found its way into the public domain. Achieving that has sometimes been both frustrating and painful. But the Ombudsman's policing of both Codes between 1994 and 2005 has played a substantial part in changing for the better the way in which the organisations over which it has jurisdiction think and behave when approaching the question of freedom of information. That is no bad legacy. * a legal test to identify a decision so unreasonable that it could not be supported.
References
1 Public Administration Select Committee (HC563-iv) 25 July 2002
2 Hansard 19 March 2002 (Col 183W)
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