Info Commissioner admits 'It's going to be tough'
Improving FoI compliance - with extreme prejudice
Information commissioner Christopher Graham says his organisation has sent out a 'shock wave' to improve FoI compliance.
Admittedly the weather forecast is poor, but thunder, lightning and torrential rain accompanies GC's interview with the information commissioner at his Wilmslow offices. "Welcome to the north-west," says Graham. The newly refurbished building of the Information Commissioner's Office provides adequate shelter from the weather, but this is easier than avoiding the effects of the financial storm which has left public spending cuts in its wake.
"We are in line to be cut like everybody else," Graham confirms. "Now I get just over £5m for freedom of information (FoI) through grant in aid from the Ministry of Justice, and that's what stands to be cut. By how much? Well, we wait to see."
A hint of sunshine is that a second revenue stream, for data protection, is unlikely to be affected. The bulk of the commissioner's near £17m budget is generated by notification fees for data protection. Small concerns, sole traders for example, pay £35, while for large organisations this climbs to £500.
"At least it does help that we have these two streams of income," concedes Graham. "Although we have to keep them separate, there are other things that get apportioned between the two streams."
This fiscal challenge has coincided with an increase in the workload. Graham says his office has never been busier, due to its higher profile following publicity about MPs' expenses and the loss of the child benefit records. Last year saw a 20 per cent increase in FoI cases and 39 per cent more cases closed compared with the previous 12 months.
"And then, of course, there has been a change of government and suddenly information rights has shot right up the agenda," he says. "I am not making a political point. It's about the times we live in. We are now doing everything online and so people have seen all the good things that can happen because of that, but they are also aware of what can happen when it goes wrong.
"So this is a concern – information rights, people's concern about privacy and respect for personal data are very political issues. Politicians have caught up with that, as they tend to do.
He adds that this also fits in with the "political synthesis" which arises from the coalition. "This is territory on which both Liberal Democrats and Conservatives could find common ground, and I'm sure that's why it is higher up the political agenda."
But he is enthusiastic about what he sees as a coming-together of circumstances and believes his office in now in an exciting place. Furthermore, he sees himself as fortunate in being able to settle into his role before the new government "started looking in our direction and asking how we could contribute".
Graham, a former director general of the Advertising Standards Authority and BBC journalist, began his five year term in office in June 2009. Although he thinks it would be a bit of a cliché to say his first year had been a steep learning curve, he admits that the information rights agenda is complicated and there was a lot to master.
He also found that the ICO's technical expertise was largely limited to forensics. At a hearing of Parliament's Home Affairs Select Committee in May he said that, although this was useful in investigations into illegal databases, he wanted more technical expertise to help "spot the next big thing before it becomes a huge problem".
Asked about progress on this, he hints at budgetary restraints: "Well, we are working out how in a period of cuts and retrenchment we can strengthen the technological know-how within the organisation."
The current intention is to have an external technology advisory group, as well as an in-house technical adviser who may want to recruit a small team of three or four people.
"I'm not going to try and invent the wheel," Graham says. "There is an awful lot of technical expertise out there, it's just that we are not always best placed to interpret it."
There was also the challenge of getting to grips with FoI processing, which he feared was in danger of grinding to a halt. A study by the Campaign for Freedom of Information, published around the time of Graham's appointment, revealed that it was taking an average of eight months before an investigation into a complaint even began. The longest delayed decision had taken nearly four years and was still going on.
Although Graham believes that it was natural for everyone involved to be cautious during the first five years of FoI, the result was an "almighty queue at the information commissioner's door".
"No, after you Claude"
"There was an awful lot of 'After you Cecil', 'No after you Claude', about it. Public authorities were taking forever to respond to Freedom of Information requests. They were then taking forever to do internal reviews. "We concluded, my colleagues and I, that we had simply to send a shock wave back through the system, if you like the other way. And we did that by prioritising clearing the backlog and making it plain to public authorities that we were no longer going to tolerate foot dragging, obfuscation, and generally gaming the system."
It did not take very long for that message to get through, and in the first year the ICO achieved a "massive" reduction in the backlog and is now dealing only with current business.
The turnaround, as Graham explains it, has a message for other public sector organisations: "It's important to say, we did not at that stage make great changes to our processes. We did not put in extra resources – we did not have any extra resources to put in. But it was simply a question of making it a management priority, cutting out some 'nice to haves', and making the point that unless we could get a grip on the FoI backlog we wouldn't be listened to on any other subject."
Graham did go on to restructure his office, however, and rather than having two entirely separate divisions for data protection and FoI, it is now organised around policy and delivery. "We have a very effective delivery operation, but we make sure through our policy function that we get consistency and quality in what we do," he says.
These changes, Graham believes, have contributed to getting across to public authorities the message about FoI rights and that the ICO and will be on their case if they don't comply.
"I think there has been a certain residual feeling, years after the act was passed, 'Oh they can't possibly expect to have access to that'," he says. "Whereas a lot of the information that is being guarded like the crown jewels is fairly boring."
Furthermore, Graham maintains that if this were published proactively, it would save a lot of management time.
"And now the lead from the top, which is very much about transparency and accountability, will also I think help in the search for savings in public expenditure, because FoI is shining the torch into the dark corners. And some things, when you have to publish them, you realise they are rather difficult to defend."
He has in mind, particularly, duplication of expenditure and parallel bodies that do more or less the same thing. The argument goes that without FoI these issues would remain hidden and inertia would mean they would continue in the same way.
"I think freedom of information is a huge contributor toward to reform of public services," he enthuses. Not everyone, however, is as positive. Tony Blair complains in his memoirs that FoI is mainly used by journalists and inhibits candid, private discussion in government. According to reports, councils face mounting bills for FoI work, £800,000 annually in the case of Birmingham City Council.
Graham says he doesn't know how councils make that sort of calculation when FoI requests are an integral part of general information work, which includes data protection and records management.
"I don't think you can separate it out and say that that bit is because we have been tied up with answering questions from the Birmingham Post and Evening Mail," he says. "And I think an awful lot of public money has been wasted by different actors in the public service resisting the Freedom of Information Act, to a ludicrous extent.
"Handling of requests, long drawn out internal reviews, dragging out the work of the information commissioner, not coming up with timely responses, changing your mind half way through an investigation, coming up with additional reasons why not, appealing to the information tribunal - with a barrister. You name it. That's where the money goes.
"Now if people can just sort of lighten up and realise that this is public information and it ought to be out there, that's where the money is to be saved, I think."
He can't put a figure on it, but suggests that FoI must be saving public services million of pounds every year, just in terms of rooting out expenditure that is difficult to justify.
On data protection, Graham believes that after the warning delivered by the loss of child benefit records, government is putting a lot of effort into ensuring there are no similar disasters. In addition, his office is auditing departments, has the power to carry out assessments of compliance with the Data Protection Act and, since April, has been able to use civil monetary penalties of up to £500,000 for breaches. He promises that penalties are "coming down the track shortly" which will teach organisations that the ICO "is for real and in earnest".
Winning the confidence of the patients and residents is a continuous battle for health authorities or local councils, he believes, and although a fine is a waste of money, the damage to reputation matters more. Over the coming months the ICO's attention will be turned to information sharing and a draft code on the matter, published for consultation in October, aims to help organisations make the best use of technology to deliver better services without losing public confidence.
Graham says it's important to provide good guidance and that the ICO is not just a "scowling regulator itching to impose fines".
"We are not a regulator that gets off on regulation," he states. "We want to help the vast majority who do things properly to do things even better and get stuff done, and we don't want to get in their hair.
"But we do want to get into the hair of the minority of operators who either know and don't care, or who don't take the trouble to find out what their obligations are, and make a compete mess of data protection."
The NHS appears to have particular problems with data protection, but the commissioner says that because the health service has had a "torrid time" with data breaches over the years, it now has specific obligations for reporting them. The fact that it reports a lot of breaches to the ICO does not necessarily mean it is the worst offender, however, and Graham suspects there are an awful lot of breaches going on elsewhere that he doesn't get to hear about.
"On the other hand I weep when I see headlines, as I did in the local paper the other day, 'medical records left at bus stop'. And you think, where have people been for the last five or 10 years."
He has ongoing concerns about the increasing amount of data held by the police and says that the only recent change is that the government's adviser on criminality information, Sunita Mason, supported his view that police forces had to be better at securing information.
Outsouring, offshoring and cloud computing all pose particular security threats. The commissioner argues that data controllers have to put in place the best arrangements possible so that contractors are clear about good practice and lines of responsibility.
"It's not a defence to say 'It's all very difficult and the technology ran away with me', if you can't demonstrate to me that you have taken every step to safeguard individuals' information," he maintains.
As to priorities for the coming year, he says that in addition to helping to free up more information and help organisations avoid catastrophic mistakes with other people's data, he would like his office to be more obviously independent of government.
"I would like to be in the position that the parliamentary ombudsman is in," he says. "Ann Abraham is reporting directly to Parliament, whereas the ICO reports through the Ministry of Justice.
"It would help me see off some of the swivel-eyed critics of the Information Commissioner's Office who think it's all a government plot."
By the end of the interview the weather outside is brighter, but the financial forecast is unsettled and Graham predicts that "doing more for less will be key".
How will he achieve this? "Well, I have a day tomorrow working out how we will manage that. But thinking over the next three years or so, it's going to be tough."
Christopher Graham will be among the speakers at Kable's Information Security and Identity Management in the Public Sector conference, taking place in London on 3 November.
This article was originally published at Kable.
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