The government is promising to release more information on request under a code of practice. The code contains a long list of exemptions, allowing broad classes of information to be withheld. But if you think these are being wrongly applied you can now appeal via an MP to the Parliamentary Ombudsman.

The Code of Practice on Access to Government Information, introduced by the then Minister of Science and Public Service, William Waldegrave, on April 4 1994 (and revised in January 1997) is a step in the right direction. The code itself only promises access to "information" not actual documents. However, the Ombudsman has said tht if someone asks for a document, he will regard that as a request for all the information in the document, and would expect the document to be released if it does not contain exempt information.

The Labour government is committed to introducing a Freedom of Information Act, which would replace the code. A draft bill is due to be published in May 1999, and the final legislation is unlikely to come into force before the middle of 2001 at the earliest. Until then the Code of Practice will remain in force. In the meantime, the government has told departments to apply the code more liberally so as "to disclose as much information as possible".

The Campaign for Freedom of Information is encouraging people to use the code - both to benefit from any improvements it may bring and to reveal its shortcomings. We will be keen to hear of your practical experience with the code - positive and negative.

Under the code the government promises to release information on request. For simple requests the code says information will normally be provided within 20 working days of the request's receipt. This period may be extended if significant work is required.

If you are not satisfied with the response you can appeal, first by asking the department itself to review its original decision. Afterwards you can ask an MP to forward your complaint to the Parliamentary Ombudsman. Complaints can be made about the withholding of information, about misleading replies and about unreasonable delays or charges.

• The Ombudsman's role under the code is a genuine advance which will create pressure for greater disclosure. The Ombudsman has the power to see any relevant government files (other than cabinet and cabinet committee papers) and has been given additional resources to investigate complaints under the code. It is clear that some information which has not been released in the past can be obtained under the code.

• Departments' internal rules and manuals, containing guidance on their dealings with the public and businesses, will be published under the code [Paragraph 3(ii)]. This will help organisations which advise the public on their rights; individuals who feel they may not have been fairly treated by a department or agency; and anyone who wants to check how the government is applying the rules regulating companies and products.

• The code creates, for the first time, a general commitment to give people reasons for administrative decisions affecting them [Paragraph 3(iii)].

• The code commits the government to supply "information", not actual documents [Paragraph 4]. This implies that applicants will normally get a letter, summarising the information in departmental documents - not the documents themselves. However, this approach has been challenged by the Parliamentary Ombudsman. He has said that he will regard a request for a document as a request for all the information in it. He has suggested that the most practical way of doing this may sometimes be to release a copy of the actual document.

• While some of the exemptions are unobjectionable, many are far too wide and a few appear not to be justified at all. However, under the code the Ombudsman could in some cases recommend that exempt information be disclosed in the public interest.

• Fees can be charged for dealing with many kinds of requests. Some departments are proposing to charge potentially prohibitive fees.

• Some important parts of government are not covered by the code, which applies only to government departments and those other bodies subject to the Parliamentary Ombudsman's jurisdiction. Since June 1995 NHS bodies, such as trusts, health authorities and GPs have had their own separate code. But bodies such as the police, the security services, the nationalised industries, the Monopolies and Mergers Commission, the National Curriculum Council and hundreds of other non-departmental public bodies are not subject to any code. The previous government originally suggested that local authorities would be covered by a separate code of their own, but no such code was produced and local authorities have been advised to introduce their own access policies.
  [See: Open Government: A good practice note on access to information, published June 1995. Available from the Local Government Association, 26 Chapter Street, London SW1P 4ND]

• Applicants cannot contact the Ombudsman directly but must ask an MP to do so. The previous Ombudsman has said this requirement "serves to deprive members of the public of possible redress". The requirement that departments must be asked to review any refusal themselves before an applicant can complain to the Ombudsman, may create delay.

• Because the code has no legal force it cannot override existing statutory restrictions on disclosure. There are some 250 of these.

• Ultimately the Ombudsman can only recommend, not compel, disclosure. Departments will prefer to comply, since failure to do so will lead to adverse publicity. So far no department has refused to comply. However, where the disclosure itself would be highly embarrassing, ministers may decide to ignore the Ombudsman's recommendations.

• information harmful to defence, security and international relations;

• information whose release would harm the frankness of internal discussions: including details of cabinet proceedings; internal advice; projections and assumptions relating to internal policy analysis; and analysis of alternative or rejected policy options;

• communications with the Royal Family and Privy Council proceedings;

• information which would prejudice the administration of justice or legal proceedings or a public inquiry, including information which has been or is likely to be addressed in such proceedings; information relating to completed proceedings or to investigations which might have resulted in proceedings; information covered by legal professional privilege; information which could prejudice the prevention or detection of crime or the apprehension of offenders or the security of buildings; information harmful to public order, public safety or individual safety or which could identify confidential informants; information which could increase the chance of damage to the environment or endangered species;

• information about immigration, nationality and entry clearance cases which would prejudice immigration controls;

• information which could harm the management of the economy or prejudice the collection of taxes;

• information which would prejudice a department's competitive position or negotiations or the proper and efficient conduct of its operations;

• personnel and vetting records;

• requests which are vexatious, manifestly unreasonable, too general or would require unreasonable diversion of resources;

• information which is shortly to be published or whose release would be "premature in relation to a planned announcement";

• incomplete analysis or research which could be misleading if published or information about companies or products held for statistical or research or health and safety or food surveillance purposes;

• personal information whose release would be an unwarranted invasion of privacy;

• information which would harm the competitive position of a third party;

• information supplied in confidence by a third party who has not consented to its disclosure;

• information whose disclosure is prohibited by law or international agreement or which would breach Parliamentary privilege.

Despite this overwhelming list, do not be put off asking for information:

• The exemptions are discretionary - they allow, but do not require, departments to withhold information.

• Even exempt information may be disclosed under the code where there is an overriding public interest in disclosure.

• Even if the information is withheld, the refusal (if it is unreasonable) will help to document the code's limitations.

If information is refused, insist on being told which of the code's exemptions has been relied on. It is a requirement of the code [paragraphs 3(iii) and 5] that people are given reasons for decisions affecting them, and this includes reasons for withholding information.

"any harm or prejudice arising from disclosure is outweighed by the public interest in making information available" [Part II, preamble].

This is a valuable principle. But departments are likely to resist pressure to disclose exempt information, however strong the case for it. You may need to persuade the Ombudsman of the public interest in disclosure: don't assume that it is self-evident. If the Ombudsman is persuaded, he will have to persuade the department to agree to release the information. Since the Ombudsman has no power to compel disclosure, this could be a source of contention.

"The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate, or improve the transparency and accountability of a particular function of Government" [Guidance, Part I, paragraph 3  Note: all references to the Guidance are to the first edition, published in 1994]

You may also want to argue the public interest case in terms of the need to: protect public safety or the environment; correct an abuse of authority or improper conduct in public office; remedy injustice to an individual; secure compensation for people who have been injured; expose the improper use of public funds; or prevent crime or corruption. Provide as much evidence as you can. Any precedent for disclosure of similar information in the past will be helpful.

The type of information and the degree of harm that could result from disclosure will be crucial:

• It may be easier to argue for disclosure of information covered by exemptions which protect administrative convenience (such as the exemption for information which would "harm the proper and efficient conduct" of a department's operations) than for information with implications for defence or national security.

• On the other hand, if the possible harm to, say, defence is extremely slight and unlikely to occur, and the case for releasing the information substantial - the balance of public interest may favour disclosure.

The government's guidance on the code gives only one example of exempt information that may be disclosable in the public interest - commercially confidential information. This it says may be released "where disclosure is necessary or conducive to the protection of public health, public safety or the environment" and where these considerations "clearly outweigh financial loss or prejudice to the competitive position of a third party" [Part II, paragraph 13.13].

• Certain types of request under the code must be granted free of charge.

• You must be told of the charges in advance and asked if you will agree to them.

• Departments often decide not ask for a fee - even though their charging policy may allow them to do so.

• You may be able to reduce or avoid charges by making your request more specific, or narrower, so that it involves less work.

• You can - and should - challenge unreasonable charges by complaining via an MP to the Ombudsman. Some departments' charging schemes appear inherently unreasonable. Do not accept charges just because they are in line with published charging arrangements.

• The NHS code applies to health authorities, health boards and NHS trusts, family doctors, dentists, opticians, pharmacists and community health councils and certain other NHS bodies such as the Mental Health Commission, the Public Health Laboratory Service, the Prescription Pricing Authority and others.

• Complaints under the Code are made to the Health Service Ombudsman, not the Parliamentary Ombudsman.

• The Department of Health and the NHS Executive are subject to the central government code of practice - not the NHS code - as are the corresponding departments within the Welsh, Scottish and Northern Ireland Offices.

• The NHS code itself is similar to the central government code, though there are some differences in the exemptions. Copies of the NHS Code and the separate Guidance on Implementation can be obtained from The Open Government Task Force, NHS Executive, Room 5/E/59/Quarry House, Quarry Hill, Leeds LS2 7UE, Tel: (01132) 546370/545121. Or you can read the Code if you click here.

• MPs will not be able to ask the Ombudsman to investigate any refusal to answer questions in Parliament. However, if MPs make separate applications under the code, they can use its appeal mechanism.

• At the end of the day the Ombudsman can only give an independent view on whether a refusal is justified under the code, and try to persuade a minister to release the information if it is not. He cannot compel a minister to release information.

• Where a parliamentary question has been refused on the grounds that an answer would involve a "disproportionate cost" (ie that it would cost more than £450 to answer) MPs may not find the code helpful, as they are liable to be asked to pay such amounts themselves.

Consider complaining to the Ombudsman about:

• any withholding of information which does not appear to be justified under the code's exemptions

• the withholding of exempt information where you think there is an overriding public interest in disclosure

• replies which you suspect are misleading, incomplete or one-sided

• the failure of a minister, department or agency to publish an adequate account of the facts and analysis which have led to a major decision or policy announcement

• the failure to give reasons for any decision affecting you, including any decision to withhold information

• the failure to give access to internal rules, guidance and manuals affecting a department's or agency's dealings with the public or businesses

• unreasonable delays in releasing information

• unreasonable charges

You can contact us at Suite 102, 16 Baldwins Gardens, London EC1N 7RJ. Tel. 0171-831 7477

	Read the Code of Practice itself.
	Press release on Government charges for information made available under the Code.
	The Campaign's evidence on the operation of the Code to the Ombudsman Select Committee's inquiry into Open Government.
	Freedom of Information & Open Government.
	Publications List.
	Home page.