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The Campaign for Freedom of Information |
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It's not too late to improve the Freedom of Information Bill 3 April 2000
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The government's weak Freedom of Information (FOI) Bill is still deeply biased against disclosure, and only a shadow of the robust proposals in its highly praised white paper.1 In too many areas it allows ministers and authorities to suppress information without showing that its release would cause harm. Ministers would even be able to veto the Information Commissioner's rulings that disclosure was in the public interest. The white paper had explicitly rejected this. In committee, ministers resisted not only fundamental change, but minor improvements, like making it a legal obligation for authorities to assist applicants (a feature of most overseas laws), or ensuring that the bill did not remove some requirements under the present openness code. Some proposed government amendments now inch in the right direction. But compared to what needs to be done, the progress is barely perceptible. This legislation has a unique history. It has been a Labour promise at every election since 1974. In 1996 Tony Blair endorsed it in the most striking terms, saying FOI "is absolutely fundamental to how we see politics developing in this country over the next few years...It will signal a new relationship between government and people...which sees the public as legitimate stakeholders in the running of the country".2 No-one listening could have believed he was referring to anything as lacking in commitment as the current bill. On April 4 and 5, MPs debate the bill's report stage. A series of key amendments, tabled by an all-party group of MPs, indicate what should be done. There are times and issues where backbench MPs can and should make a difference.
EXEMPTIONS All FOI laws exempt some information from the right of access, to protect interests like defence, law enforcement and personal privacy. What matters is how tightly defined these exemptions are: whether they require real evidence that a particular disclosure would cause harm, or throw a blanket of secrecy over an entire class. Some of the bill's exemptions require authorities to show disclosure would 'prejudice' particular interests.3 'Prejudice' is not a demanding test, but it does require some evidence of possible harm. The Information Commissioner would be able to order disclosure if the authority cannot show 'prejudice' would result from the disclosure. But there are also many blanket exemptions.4 These are indiscriminate: they apply to all information in a particular class, regardless of the contents of any particular document. Vast amounts of harmless information will be withheld from the public as a result. This paper concentrates in particular on three of the most damaging blanket exemptions:
It also highlights:
Pressing amendments on these issues, Nos 1-4 below, would be particularly valuable.
1. INVESTIGATIONS Clause 28(1) Clause 28(1) exempts all information held in connection with inspections or investigations by bodies which have the power to bring prosecutions. Along with the police, Serious Fraud Office and National Crime Squad these include a group of safety authorities, including the Health and Safety Executive, the Railway Inspectorate, the Nuclear Installations Inspectorate, Trading Standards Officers, Environmental Health Officers and Fire Authorities. The clause exempts all information obtained by these bodies during inspections or investigations, regardless of whether disclosure could interfere with legal proceedings, law enforcement or any other interest. The public will have no right to information revealing what inspectors found at hazardous premises or when investigating accidents. The authorities concerned would not even need to reveal whether they hold information.5 Most safety authorities usually deal with problems without prosecuting, particularly if the person concerned puts things right when asked to do so. But even if it is clear that no legal action will follow, the information will remain exempt. If there is a prosecution, the information will still be exempt after the trial. There would be no right to know about problems like BNFL's falsification of nuclear quality control data, abattoirs that fail to comply with BSE rules,6 trains that ignore warning signals, dealers who sell dangerous cars or caterers responsible for food poisoning incidents. There would be no right to see how safety bodies go about checking these problems: whether they are vigilant and thorough or ignore, or even condone, dangerous practices. The only chance of learning anything would be under the bill's weak 'public interest' test, described below. Under clause 28(1) the police would also not have to reveal anything held in connection with an investigation. Information which is not part of the case against anyone, but which indicates failings on the part of a police inquiry, would be exempt. The inadequacies of the investigation into the murder of Stephen Lawrence would be shielded from scrutiny. The Macpherson report explicitly recommended there should be no such 'class' exemption for the police.7 The obvious solution is to amend clause 28(1) so that it only applies to information which could prejudice investigations or legal proceedings. Amendment 39 would do this. Please support it.
2. DISCLOSURE IN THE PUBLIC INTEREST Clause 13 Clause 13 requires authorities to consider releasing exempt information in the public interest. As it stands, the Commissioner could only recommend, but not require, disclosure. Under government amendments the Commissioner would be able to require disclosure in the public interest - but ministers and local authorities would be able to veto such a disclosure.8 The veto is deeply objectionable. If ministers are told to disclose information which might undermine their credibility, or reveal the flaws of a prestige project, the temptation to reach for the veto may be irresistible. It may also undermine the one chance that people have of overcoming the bill's limited rights. Where blanket exemptions apply, there is effectively no right to information, except on public interest grounds. The veto could shut this one door. The white paper explicitly rejected a veto, saying: "We have considered this possibility, but decided against it, believing that a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act."9 Ministers claim that to allow the Commissioner to force elected ministers or councillors to disclose information in the public interest would be "profoundly undemocratic" - an astonishing proposition. Moreover, the 1997 white paper envisaged the Commissioner having this power. But according to Home Office minister Mike O'Brien, giving the Commissioner the final say 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".10 Requiring politicians to tell the truth is not what most people regard as 'undemocratic'. The public have a healthy scepticism about ministers' ability to distinguish between the public interest and their own interest. During the Arms to Iraq affair, when another form of public interest veto was much in the news, Labour spokesmen appeared to share this scepticism. As a Law Lord put it as long ago as 1956: "The interests of government, for which the minister should speak with full authority, do not exhaust the public interest."11 In any case, there can be no objection of principle to allowing the Commissioner to overrule ministers, since the bill already allows it in relation to the 'prejudice' exemptions. If a minister cannot prove that a disclosure would 'prejudice' interests such as defence or the economy,12 the minister can be overruled. If ministers then think the Commissioner is wrong, the bill allows them to appeal, first to a tribunal and then to the high court. They do not need a veto, unless their arguments are so weak that no tribunal or court would accept them. The veto would be introduced by government New Clause 6. Please VETO THE VETO by voting against New Clause 6. Without new clause 6 the related government amendments would improve the Commissioner's powers.
3. POLICY AND FACTS Clauses 33(1) & 13(6) Clause 33(1) contains a gigantic exemption for all information relating to the formulation of government policy, all ministerial communications, anything relating to the seeking of law officers' advice, and anything to do with a minister's private office. The scale of this exemption is extraordinary by international standards. The policy formulation exemption is not limited to civil service advice, but would include anything considered in drawing up policy, including purely factual information. Clause 13(6) refers to the public interest in revealing factual information which could be withheld under this exemption. When considering the clause 13 public interest test, a department would have to 'in particular have regard to the public interest' in revealing factual information.13 This is a nudge in the direction of disclosure. However, any unwelcome move by the Commissioner to require disclosure of facts in the public interest could be subject to a ministerial veto. Ministers would be able to withhold unpublished research, statistics, opinion polls, costings, descriptions of the scale or cause of a problem or scientific advice on possible health hazards. They would not even have to admit whether such information exists.14 Most FOI laws expressly exclude factual information from any equivalent exemption. The Scottish Executive's FOI proposals also do so. Many FOI laws, such as Ireland's and New Zealand's, go beyond disclosure of the facts and allow analysis of options and their relative merits to be released, usually after decisions, unless some particular harm would be caused. As the publication of the minutes of meetings between the Chancellor and the Governor of the Bank of England, (and subsequently those of the Monetary Policy Committee) showed, this may enhance public understanding of, and confidence in, decisions without undermining decision-making. Amendment 10 would prevent factual information being withheld under the policy exemption. Amendments 8, 9 and 11 would allow other information to be withheld only if disclosure would prejudice policy making or other interests. This is broadly what the white paper proposed.15 Amendment 91 is more explicit, favouring the disclosure of options and their analysis, but protecting opinions or recommendations about them.
4. THE CONDUCT OF PUBLIC AFFAIRS Clause 34(2)(c) Authorities would be able to justify withholding information on the grounds that secrecy improves efficiency or speeds up decisions. This would be enough to establish the information was exempt under clause 34(2)(c). The exemption allows any public authority, including government departments, local authorities and quangos, to assert that in the 'reasonable opinion' of a 'qualified person' (a minister or official) disclosure would 'prejudice the effective conduct of public affairs'. This opinion could not be challenged by the Commissioner, unless it was irrational. According to Home Office minister, Mike O'Brien: "The Government consider that only a qualified person can have a full understanding of the issues involved in the decision-making processes of a public authority...we do not consider that it would be right for the prejudice caused by that sort of information to be determined by the Commissioner"16 This is a deplorable provision, which could have been designed to frustrate the Act. Authorities will no doubt routinely cite this exemption whenever they seek to block access. Amendment 12 would remove the reference to the 'reasonable opinion of a qualified person', allowing the Commissioner to review decisions. Amendment 14 would delete the exemption altogether.
5. COMMERCIAL INTERESTS Clause 41 The bill allows information to be withheld if disclosure would reveal trade secrets or 'prejudice the commercial interests of any person'. 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. This would 'prejudice' their commercial interests, and therefore be exempt.17 Amendments 37 and 38 address this
6. SUBSTANTIAL PREJUDICE Various clauses The white paper proposed that to withhold information authorities should have to show that disclosure would cause 'substantial harm'. Where the bill has a test of harm at all, it is the weaker test of causing 'prejudice'. Two select committees recommended this should be improved to 'substantially prejudice'. Amendments 15 to 32 do this and would bring the bill into line with the test which the Scottish Executive has proposed for its FOI law.18 New Clause 7 adopts an indirect approach to the same issue. It states that where information is released under a disclosure scheme in any of the devolved administrations, information which is 'substantially similar' cannot be withheld under the UK bill.
7. GAGGING THE COMMISSIONER Schedule 2 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.19 An amendment will be tabled to remove this provision.
8. SCOPE OF THE PUBLIC INTEREST TEST Clause 13(2) At present not all of the bill's exemptions are subject to the public interest test in Clause 13. Amendment 1 would extend the test to the 8 exemptions not covered.20
9. RETROSPECTIVE EXEMPTIONS Clause 43 Ministers will be able to create new exemptions by Parliamentary order in time to block existing requests, a provision unheard of in other FOI laws.21 They will also be able to remove any information from the scope of the bill by Parliamentary order.22 Amendments 33 to 35 remove these provisions.
10. REPEALING EXEMPTIONS New Clause 5 Although ministers will have the power to create new exemptions by order, they do not have similar powers to repeal or restrict exemptions, should they later accept that they are too restrictive or being abused. According to David Lock, minister in the Lord Chancellor's Department, the power to restrict the right of access is essential to provide "flexibility to respond to changes in circumstances".23 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".24 A future Home Secretary might decide that the bill needs to be improved. New Clause 5 allows this to be done by Parliamentary order.
11. NATIONAL SECURITY Clauses 21 & 22 Amendments 92 and 97 bring the security and intelligence services within the bill's scope and remove a class exemption in clause 21 for all information about or supplied by various security bodies. Other information can be exempted under clause 22 by a ministerial certificate issued on national security grounds. Amendments 93-96 replaces this with a test of whether disclosure would 'prejudice' national security.
12. PURPOSE CLAUSE New Clause 1 Many FOI laws have a 'purpose clause' setting out the legislation's objectives. These make it clear that in exercising any discretion, or considering the public interest, certain factors, such as improving the accountability of public bodies should be given weight. New Clause 1 provides a purpose clause.
13. DUTY TO ASSIST New Clause 3 Unlike most FOI laws, the bill does not place authorities under a statutory duty to assist applicants in exercising their rights. New Clause 3 would create such a duty.
14. REASONS New Clause 4 The openness code requires central government bodies to automatically give people reasons for administrative decisions affecting them. The bill replaces this requirement with a much vaguer provision in clause 17(3)(b). New Clause 4 would ensure that existing requirement continues to apply to government bodies. The Commissioner could also extend it to others.
15. INTERNAL MANUALS Another provision of the code which the bill does not directly incorporate is the existing duty on central government bodies to publish their internal manuals of guidance. A New Clause would preserve this requirement, and allow it to be extended to other bodies.
16. COMMENCEMENT Clause 85 The Act may not come fully into force until 5 years after it is passed. Amendment 40 would reduce this period to 3 years.
Endnotes
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Briefing pack on the Government's proposals. |
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Freedom of Information & Open Government. |
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Home page. |