22.03.06
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MPs
subjected the information commissioner, Richard Thomas, to tough questioning
at a parliamentary select committee hearing.
The constitutional affairs committee is reviewing how he has regulated
the freedom of information act (FOIA) during its first year of full implementation.
And it was unimpressed with his reasoning that the mounting backlog
at his office was due to the “complexity and lack of tidiness”
of cases received. He said that the office has around 1,500 complaints yet
to be resolved, some 700 of which he described as a “backlog”.
Thomas also claimed that he had received more cases than expected.
However, MPs recalled that when he gave evidence in 2004 he predicted a caseload
of between 2,000 and 3,000, which accurately predicted his actual caseload
of 2,385 for 2005.
The chairman of the committee, Alan Beith, Lib-eral Democrat MP for
Berwick-upon-Tweed, said: “You’re obviously a lot better at predicting
then you are at preparing for the situation you predict.”
During the testimony earlier this month, it became clear that untidiness
was the least of the commissioner’s problems. He was hamstrung by a
lack of funding from the department for constitutional affairs.
Thomas said that his request for an extra £1.13 million, on top
of the regulator’s basic annual funding of £5 million, for the
financial year beginning next month – specifically to clear the complaints
backlog by March 2007 – was only answered the day before he testified.
Even then, the department failed to say how much extra money would be available.
The department also set annual salary caps at £15,000 for investigators
and £25,000 for senior staff, he said, making it difficult to retain
quality staff.
These are real factors that prevent Thomas from doing his job properly.
But why did he not mention them straightaway instead of blaming the hapless
public? If requestors provided incomplete com-plaints, this is mainly because
the regulator failed until a few months ago to provide a form and checklist.
This unwillingness to stand up to government is, I believe, the crucial
problem at the office of the information commissioner. Thomas must see him-self
as an advocate for the people, not just another civil servant. And, to that
end, he must lobby to be free from government control and funded directly
from parliament.
The commissioner’s first year has been an ex-ample of how not
to run a regulatory body. His enforcement of the law has been woefully weak.
The massive delays and poor communication from his office have discouraged
those who put cases to him in the hope that he would live up to his rhetoric
about changing the culture of secrecy in the UK.
Instead, his timidity has strengthened the secrecy status quo.
One especially absurd aspect of the commissioner’s performance last
year was his bizarre policy to try to keep his rulings on complaints secret.
For a month in May 2005, the commissioner’s office refused to
publish its first “decision notices”. I was forced to file a FOIA
request in June in an attempt to obtain them. In response, I received a brief
summary of the first 11 decisions and posted them on the ‘Your right
to know’ website.
The next day, Thomas told a conference in Lon-don: “Perhaps we
were a little nervous before in not publishing,” adding, “but
we’re changing our policy and I’m announcing today that summaries
of all our decisions will be published online, 48 hours after they are made.”
Meanwhile, the regulator refused to publish a list of cases under review.
By contrast, the Scottish information commissioner, Kevin Dunion, has such
a list on his website. The information tribunal, to which notices by the information
commissioner can be appealed, also publishes on its website a list of pending
cases.
I added this to my FOIA request of June, but the full answer did not
come until more than a month after the statutory deadline. The delay was caused,
I was told, because the information commissioner’s office had misunderstood
my request for “all complaints received” to mean some of the cases
received.
Despite repeated requests from the society of ed-itors, journalists
and activists, the regulator still does not proactively publish its caseload.
This is a shame because the database is the only empirical way to monitor
the commissioner’s performance. I have published the caseload data from
August 4, 2005 and March 14, 2006 on my website, but this should be on the
information commissioner’s website. Unlike the regulator, I am not in
receipt of a multi-million-pound budget.
Before FOIA came fully into force, Thomas said that he would send out
a strong signal that disobeying the law would not be tolerated.
A year later, I am still waiting for that signal.
Decisions were slow in coming and weak
when they finally came. Few have ruled for greater open-ness. Hundreds of
public bodies are ignoring the deadline of 20 working days, while the regulator
fails to take action. As little power as the commissioner has, he failed to
issue a single practice notice against the many poorly performing public bodies.
The way to turn around the
failing regulator is obvious:
I
give this advice for free. The regulator, however, has seen fit to pay PA
Consulting £100,000 for a critique of its performance. The department
for constitutional affairs may be reluctant to pay for more staff to clear
the backlog, but it is happy for public money to be paid to a private company
to state the obvious.
Heather Brooke is the author of ‘Your Right to Know’
(£13.99, 2nd edition, Pluto Press), shown right, available online from
Amazon.
Comment
on this article
Lord
Lester’s battle for date of legal advice on Iraq
BBC
unveils the stories it found through FOIA
‘We’re
trying our best and we’re getting tougher’
Commons told to release
MPs’ travel exes
PCC urged to stop Press stealing
information
Headlines
Links
House
of commons constitutional affairs committee
Information
commissioner
Information
tribunal
Scottish information
commissioner
‘Your
right to know’, Heather Brooke’s website
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