Press release:15 March 2000
16 things you would not have believed possible
under a Freedom of Information Act
The government's Freedom of Information (FOI) bill - whose Commons report stage is due in the next fortnight - is biased against disclosure to a remarkable degree, according to the Campaign for Freedom of Information. It is likely to come under renewed pressure this week, when Rhodri Morgan, Wales's first secretary, announces a new FOI policy for the Welsh Assembly. Some of the failings are so extraordinary, that no-one would have believed that they could be found in an FOI bill at all.
- Information about dangers to public safety will be exempt, including information about the falsification of nuclear safety test results by BNFL, railway crashes like the Paddington accident, abattoirs which fail to comply with BSE regulations, restaurants responsible for food poisoning outbreaks, car dealers selling dangerous cars and similar matters.1 Safety authorities could even refuse to confirm or deny whether they hold such information.2
- The facts on which government policies are based will be exempt. Ministers will not have to reveal the research, statistics, cost data or opinion polls on which decisions are based or scientific advice on issues such as the cause of BSE. Ministers will not even have to say whether such information exists.3
- Ministers and authorities which break the law or act negligently or complacently will themselves decide whether it is in the public interest to reveal this. The independent Information Commissioner will only be able to recommend, not require, disclosure on public interest grounds:4
- British Nuclear Fuels will decide if it is in the public interest to reveal information about safety problems at Sellafield;
- Dame Shirley Porter would have decided if it was in the public interest to reveal information about Westminster Council's housing sales policy;
- Ministers would decide if it is in the public interest to reveal information about the safety risks of part-privatising the air traffic control system or the London underground.
- Obscure quangos like the British Potato Council and the Government Hospitality Fund Advisory Committee for the Purchase of Wine will also be able to overrule the Information Commissioner on questions of public interest.
Ministers say that to leave these decisions to the Information Commissioner would be "profoundly undemocratic".5
The Information Commissioner will be subject to a 'gagging clause' and will commit a criminal offence by revealing information which a member of the public would be entitled to obtain under the Bill itself - a farcical situation.6
No information about police investigations will have to be disclosed, even if it could not affect law enforcement or legal proceedings. After an attack had been committed, the police will not even have to say whether any witness had come forward, whether the witness had been interviewed or had described the attacker. The inadequacies of the investigation into Stephen Lawrence's murder could be concealed under this exemption.7
The fact that a company had sold dangerous products, or behaved in some other disreputable manner, could be suppressed if disclosure would lead customers to buy alternative products or shareholders to sell their shares.8
The number of civil servants employed in a minister's private office would be exempt.9
The bill's privacy exemption is so strict that authorities may decide that even the names of civil servants, or local government councillors, acting in an official capacity should be blanked out of documents before they are disclosed.10
Authorities will be able to withhold information which in their "opinion" would "prejudice the effective conduct of public affairs" - an extraordinarily vague test.11 Because their "opinions" are given legal weight, their decisions will be immune from challenge - unless they are irrational.
Authorities will be able to destroy records which someone has asked for, provided they had planned to do so before the request was made.12
Authorities will be able to refuse requests without telling applicants of their right to complain to the Information Commissioner.13
Ministers will be able to create new exemptions by Parliamentary order in time to block existing requests.14 They will also be able to remove any information from the scope of the bill by Parliamentary order.15
Ministers refuse to take similar powers to improve the bill by Parliamentary order (e.g. by restricting the scope of an exemption). They say they need to be able to restrict the right of access to have "flexibility to respond to changes in circumstances".16 But an equivalent power to strengthen access would "allow the delicate balances in the Act...to be upset by secondary legislation" and "cause considerable concern to many authorities".17
Authorities will be able to charge higher fees for information which they release in 'the public interest' than for information released on other grounds under the bill. This is unique to the UK bill. Other FOI laws reduce fees where disclosure is in the public interest.18
The bill would remove some existing rights under the Tories' open government code, introduced in 1994, which applies to central government bodies.19
The bill may not come fully into force for 5 years.20
Before the election Tony Blair promised an FOI bill that would "signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust."21
But the Campaign's director, Maurice Frankel, said: "No-one would have believed Mr Blair was referring to a bill as feeble as this - or that provisions like these could form part of an FOI bill at all. There is no legal right to information about crucial areas of government. If ministers or authorities take incompetent decisions, or expose the public to danger, they will be able to cover up their own failures. Two changes above all are needed. First, the blanket exemptions should be removed: authorities should not be able to withhold information unless they can show disclosure would be harmful. Second, the Information Commissioner should be have the final say on when disclosure is in the public interest - not ministers and authorities who may have something to hide."
The government has indicated it will make some amendments to the bill at its report stage in the House of Commons, later this month. The Campaign says these will need to be far reaching if the bill is to meet the promises that Labour has repeatedly made over the last 25 years.
The Information Commissioner's powers under the FOI Bill depend on the type of information involved.
- In some areas the bill only allows information to be withheld if disclosure would 'prejudice' particular interests such as defence, the economy or commercial interests. If an authority fails to demonstrate 'prejudice' the Commissioner can order disclosure.
- In other areas, like policy formulation and safety investigations, blanket exemptions apply to all information, even if disclosure would do no harm. Authorities will be free to withhold all such information - the Commissioner can do nothing about it
- Authorities also have to consider releasing exempt information in the 'public interest'. But the Commissioner can only recommend, not require, disclosure on these grounds. Authorities will be able to overrule the Commissioner if disclosure would be embarrassing to them.
- Under clause 28(1) information is exempt if it was obtained by a regulatory body during an investigation which could have led to a decision to prosecute for an offence, including a safety offence. Most information obtained by safety inspectors about individual premises or accidents will fall into this category. The exemption applies even if disclosure could not prejudice legal proceedings (e.g. because any trial was over) or prejudice law enforcement, or endanger the safety of witnesses or informants.
- Clause 28(3) explicitly allows authorities to refuse to confirm or deny the existence of such information
- Under clause 33(1)(a) all information which "relates to the formulation or development of government policy" is exempt, including the facts on which policy is based. Unlike the existing code of practice on openness, there is no test of whether disclosure would cause harm, for example, to the frankness of internal discussions. Under clause 33(2) ministers will be entitled to refuse to confirm or deny whether they hold information on which the policy is based.
- Under clause 13, authorities must consider the public interest in disclosing exempt information. However, clauses 50(7) and 52(2) explicitly prevent the Information Commissioner from requiring disclosure on these grounds. The Commissioner can only recommend disclosure in the public interest [clause 48]. The Commissioner has stronger enforcement powers in relation to some other decisions.
- Mike O'Brien MP, Parliamentary Under Secretary of State, at the Home Office, said, in response to amendments which would have given the Commissioner the final say: "Under the amendments the commissioner's decision would be enforceable. We have expressed our view that the amendments would, artificially and unnecessarily, create a democratic deficit. A democracy must mean something...Some of the arguments that we have heard, seeking to shift the balance towards allowing an unelected official to overrule the democratically elected Government, are profoundly undemocratic." Standing Committee B, 12th sitting (morning) 8 February 2000, col. 431.
- Clause 59 of the bill extends a secrecy clause in the Data Protection Act 1998 to the Information Commissioner. The offence is committed by disclosing information about an identifiable individual or business without their consent unless the disclosure was 'necessary' for the Commissioner's functions or 'necessary' in the public interest. 'Necessary' is a strict test, which means that the Commissioner would have to show that she could not carry out her functions or the public interest would be damaged, if she did not release the information. The fact that disclosure did no harm would not be relevant. The Data Protection Registrar, Elizabeth France, who will be the first Information Commissioner, objected to this offence when the Data Protection Act went through Parliament, but the government maintains that it is required under the European data protection directive - something the Registrar herself disputes. However, the offence cannot possibly be required under the FOI bill, which is not the result of any EU directive.
- Clause 28(1) is a class exemption for all information which has at any time been held by the police for the purposes of an investigation. Yet the Macpherson report into the murder inquiry into the death of Stephen Lawrence said "We see no logical grounds for a class exemption for the police in any area."
- Clause 41 allows authorities to refuse information whose disclosure would "prejudice the commercial interests of any person". The prejudice could be caused by consumers refusing to buy a dangerous product. An authority could, if it wanted, disclose such information in the public interest voluntarily, under clause 13. But if the authority did not want to, for example, because it showed that the authority had known about the problem and done nothing, the Commissioner could not compel disclosure.
- Under clause 33(1)(d) all information which "relates to the operation of any Ministerial private office" is exempt. The disclosure would not have to cause harm to be exempt.
- Personal data whose disclosure would breach any of the 1998 Data Protection Act principles is exempt under the FOI bill. An individual's name is personal data, even if it refers to someone acting in an official capacity. No personal data can be disclosed, unless the disclosure is 'necessary' for one of a number of purposes or the individual consents. The name of a civil servant who wrote an official paper or was present at a meeting, could only be revealed if it was 'necessary' for the department's functions or 'necessary' for the pursuit of the authority's or applicant's 'legitimate interests'. The applicant's proposed use of the information would also have to be 'compatible' with the purpose for which the authority holds the information. The tests are so complex and obscure that many authorities will probably adopt a policy of automatically blanking out all individual names from documents before disclosure.
- Clause 34(2)
- The bill is tough on officials who deliberately destroy records in order to block disclosure. This would be an offence. However, if an authority planned to destroy the records, it would be entitled to go ahead and do so even after receiving an FOI request - a nonsensical provision.
- Clause 15(1) sets out the information which an applicant must be given, when information is refused. It does not include details of the right of appeal.
- Clause 43(4) specifically allows such new exemptions to apply to requests which were received before the exemption was created.
- Clause 6(3)
- David Lock MP, Parliamentary Secretary, Lord Chancellor's Department, Standing Committee B, 11th sitting, Tuesday 1 February 2000 (afternoon), col. 386
- David Lock MP, Standing Committee B, 14th sitting, Thursday 10 February 2000
- The government has said that fees for normal requests will be limited to 10% of the actual marginal costs of locating the records. However, the full costs could be charged where a discretionary disclosure was made in the public interest. Home Office, Freedom of Information. Consultation on Draft Legislation., Cm 4355, paragraph 58
- (a) The code requires departments to publish the facts on which policies are based - the bill drops this requirement (b) the code requires authorities wishing to withhold policy information to show that disclosure would harm the frankness of internal discussions - the bill allows all policy information to be withheld regardless of any harm (c) the code requires departments to publish the internal guidance used by staff in dealing with the public - the bill drops this requirement (though the Commissioner would have the discretion to require it if she chooses).
- The government intends to bring the bill into force in stages, starting 18 months after it becomes law. But the process does not have to end until 5 years after it becomes law (Clause 85(5).)
- Tony Blair, speech to the Campaign for Freedom of Information's Awards, March 1996. The full speech can be read on the Campaign's web site: www.cfoi.org.uk/blairawards.html