On the positive side, the code:

1. limits the grounds for withholding information

2. provides, for the first time, a mechanism for the independent review of refusals of information by officials and ministers

3. introduces the important principle that even exempt information may be disclosed if there is an overriding public interest in openness

4. commits departments to releasing the internal guidance they use in their dealings with the public.

But the code's drawbacks are that:

1. it offers only information, not copies of actual documents - a fundamental weakness, though one that the Parliamentary Ombudsman has challenged

2. its scope is limited to bodies subject to the Parliamentary Ombudsman's jurisdiction. Although separate codes for the NHS and local government have been promised, important areas of the public sector fall outside the scope of any code

3. some of the code's exemptions are excessively broad, protecting information which in our view should be disclosed

4. the arrangements for charging permit high fees to be charged, with no provision for waiving them for non-commercial requesters or information whose disclosure would be in the public interest

5. because the code has no legal basis it cannot override the 250 or so separate statutory restrictions on disclosure which may prevent the release of many kinds of information

6. although there is considerable pressure on departments to comply with the Ombudsman's recommendations, at the end of the day departments remain free to reject them.

Three of these shortcomings can be remedied only with legislation. This would be required (a) to extend the code to bodies not currently subject to the jurisdiction of the Parliamentary Ombudsman (b) to override existing statutory secrecy restrictions and (c) to ensure that departments and authorities must comply with any disclosure scheme.

The Campaign has been using the code itself; and encouraging others to do so. In May 1994 we published a detailed briefing on the code which has been circulated to the Campaign's supporting organisations and others. We think it important that people know of their rights to information and be encouraged to use them. The public's assumption that official information will not be disclosed is so prevalent that, unless the code is widely publicised, people will continue to assume that there is no point in asking for information.

Our preliminary experience of the code in operation suggests that it is capable of eliciting information which would previously not have been disclosed. The prospect of an investigation by the Ombudsman does appear to make departments whose objections to disclosure are not well-founded think again. The release of internal guidelines is likely to be valuable to individuals in their dealings with government and to organisations which advise them.

The increased funding to the Ombudsman's office, to enable him to take on new staff to deal with code complaints, is welcome. So is the publication of the Office of Public Service and Science's (OPSS) substantial internal guidance on the code. Although we think the arrangements for monitoring the handling of requests under the code should be improved, the fact that systematic monitoring across departments is taking place is a further positive development.

However, the code has not been adequately publicised. Rights which people have, without knowing of them, are of limited value. Requests under the code have sometimes been met with prohibitively high fees. Some requests have been dealt with in an unhelpful manner, with departments citing multiple, and sometimes clearly inappropriate, exemptions. There may be excessive delays both in replying to requests, and in carrying out the internal review required before a complaint to the Ombudsman can be made. In some cases the series of obstacles between the dissatisfied applicant and the Ombudsman may be so great as to effectively deny that remedy to requesters. Ministers have claimed that the code's advantage over a Freedom of Information Act is that it is more informal and less bureaucratic than legislation. But there are signs that some of the arrangements under the code are themselves legalistic and bureaucratic, without the benefits of a legally enforceable right.

Level of code requests

It is clear from the Parliamentary Ombudsman's report on the first eight months of the code [HC 91] that few complaints to him are being made.

The OPSS report on the code's first 8 months states that a total 2,600 requests under the code have been made. We wonder whether this figure may be an over-estimate. The Welsh Office alone accounts for 1059 requests, representing 40% of the total, a surprisingly large proportion.

The Welsh Office requests do not appear to comply with the definition of a "code request" set out on page 3 of the OPSS report. Instead they are described as requests " which are outside the run of information usually asked for, whether or not the applicant specifically mentions the Code". There is a great discrepancy between the Welsh Office figure, and the modest number of requests received by the Scottish Office (which received 45 requests) and the Northern Ireland Office and departments (which between them received only 5 requests). This may be because the Welsh Office has been more successful in publicising the code. However, it may be significant that not one out of more than a thousand requests was refused, even in part. One would normally expect at significant proportion of applicants to be seeking information which in fact was legitimately exempt. Customs and Excise, for example, refused 4 out of the 20 requests; 3/12 MAFF requests were refused in part; 3/9 Foreign Office requests were partly refused. It is hard to believe that out of more than a thousand similar requests to the Welsh Office not one happened to be seeking even a fragment of exempt information, and that all 1059 could have been met full. This suggests that the Welsh Office may be including more straightforward requests which most of government does not regard as made under the code. The fact that some 300 code requests are said to have come from the media - an extremely high figure - raises the question of whether some normal press requests are also being classified as made under the code.

Definition of a "code request"

We suggest that the OPSS definition of a "code request", in paragraph 8 of its 1994 report, might usefully be amended to ensure that applicants whose requests are dealt with under the code are always told that this has been done, even if they have not themselves cited the code.

The department's response to a request should therefore (a) always state that it was dealt with in accordance with the code; (b) if information has been withheld under an exemption, acknowledge the fact; (c) refer to the code's appeal process whether or not information has been withheld; this will alert requesters who may feel that a reply is not entirely adequate to the fact that there is something they can do about it; (d) enclose a copy of the department's own code leaflet or written procedures.

This procedure would help both to publicise the code, and expose the department's responses to the disciplines of the code. Once this had been done, the request might then legitimately be recorded as a "code request".

Publicising the code

A number of factors may partly explain the low use so far made of the code.

First, the government gave little publicity to the code's launch. The fact that the code was brought into force on a bank holiday during the parliamentary recess, guaranteed an inconspicuous start. Although the draft code was published in the July 1993, the final code was published only three working days before its implementation on April 4 1994. Journalists who might otherwise have written stories anticipating the code's introduction had no final text until the last moment, and little opportunity to publicise the event.

Second because the code has been implemented administratively and not - as would have been the case with a Freedom of Information Act - gone through the legislative process. As a result the public awareness and expectation that would have been created by a bill going through, and perhaps being fought over in, succeeding parliamentary stages has not occurred.

Third, many of those who have heard of the code may have been disinclined to use it because of its shortcomings. For example, the fact that the code - at least as interpreted by the government - commits departments to releasing only a letter with summary information, rather than copies of documents, may suggest to applicants that it offers relatively little that is new. People have always been able to seek information in correspondence with departments. Moreover, those seeking access to their own personal files - perhaps the largest group of potential users - will have been specifically deterred by the explicit statement that "the Code should not be regarded as a means of access to original documents or personal files" [Code, paragraph 8].

Fourth, the government has spent little on publicising the code. The OPSS and many individual departments, have produced leaflets explaining the code. Nevertheless, the government's total expenditure on publicity for the code during 1994 is said to be £51,157 [Written Answer, 20.12.94. col 1013]. Some of the individual figures which make up this total appear to be overestimates. For example, the Office of Fair Trading is said to have spent £6,836 publicising the code, a surprisingly high proportion of the total. In fact the OFT has told us that this figure refers to the cost of printing a general booklet on the OFT's charter responsibilities. Only part of this can be attributed to the code, as the booklet also deals with the OFT's standards of service, complaints procedures and statutory functions. The Northern Ireland Office is said to have spent £2,945 publicising the code. The NIO has told us that most of this sum was spent on internal circulars informing staff of the code, and that only £830 of the total was spent on information for the public.

The publicity budget of £51,000 for the code's first eight months may be compared to:

• the £542,010 spent publicising the Charterline during its first 9 months [WA, 2.2.94, col.789];

• the £311,747 spent on publicity for the 1993 Chartermark winners [WA 24.3.94, col 358];

• the £420,000 publicising the citizen's charter first report and producing summary guides to it [WA 18.3.93, col 342].

• the initial £291,550 spent distributing and publicising the council tenant's charter [WA 27.1.92, col 415]

• the nearly £2 million spent circulating copies of the parents charter to all schools in September 1991 [WA 14.7.92, col 556]

• the £2 million spent producing and distributing the patient's charter up until January 1992 [WA 21.1.92, col 151]

There has been no paid advertising for the code. By contrast, we note that in 1993-94 the Department of Employment spent over £1.8 million advertising the existence of career development loans [WA, 18.1.95, col 568]. A more relevant example may be found in the budget for publicising the Data Protection Act, which amongst other things gives individuals the right to see computerised personal files held on themselves. In recent years the Data Protection Registrar's annual budget for publicity - which is directed both at informing individuals of their rights and computer users of their obligations - has varied from around £400,000 pa to over £750,000 pa. Following a television advertising campaign in 1993-94, a survey showed that 64% of people had heard of the Data Protection Act or Registrar - a 10% increase on the previous year [10th Annual Report, pages 54 and 83].

We have no doubt that people will use new rights to information if they know of them and expect them to be effective. Recently, new Environmental Information Regulations came into force, implementing a European directive, and creating a broad right of access to environmental information. Most departments do not record the numbers of requests made under them. However, one that has done so, the Northern Ireland Office, stated that it had received 1,221 requests in the eight months, April to December 1993, after the regulations came into force in Northern Ireland [WA 6.7.94, col 253-4]. The contrast between this figure, and the total of just 5 requests to the Northern Ireland Office and departments in the first 8 months of the code's existence is striking. We suspect it indicates a lack of awareness of the code's existence - not that the people of Northern Ireland are concerned solely with environmental issues to the exclusion of all other aspects of government activity.

Documents

One of the code's most significant defects is that it promises access only to information, not to documents:

"There is no commitment that pre-existing documents, as distinct from information, will be made available in response to requests". [Code, paragraph 4]

"The Code...does not constitute a right of access to documents or records." [Part I, paragraph 50]

"Requests for information should be met in the simplest, most cost-effective way. This will usually be by letter giving the information requested. The public has no right, under the Code, to a copy of a particular document." [paragraph 52]

"A digest of the relevant information is likely to be more useful to most applicants than reams of less relevant original material." [Open Government, Summary of Consultation Comments & Government Response, March 1994]

In our view this is a potentially overwhelming defect: the opportunities for selective editing are obvious. A body which anticipates that full disclosure may expose it to criticism is unlikely to be able to resist the temptation to produce a summary which slants or even conceals the truth. There is little reason for the public to have confidence in such a disclosure scheme.

We do not accept the suggestion that the public will prefer a specially prepared "digest" of the "relevant" information to the original documentation. In our experience, both under the code and other disclosure schemes, people often seek information on subjects about which they have considerable knowledge and are capable of making use of whatever "raw data" may exist or have access to experts who can do so for them.

The former Minister for Public Service and Science, Mr William Waldegrave, also argued that to release a specially prepared summary "will be cheaper in most cases" than to supply the original documents. ["Open Government" seminar, 21.10.93]

However, we think it likely that preparing a balanced and accurate summary from a variety of disparate and perhaps inconclusive documents in a file will involve a great deal more painstaking work, and be considerably more expensive, than releasing the documents themselves.

The OPSS guidance appears to acknowledge that this will sometimes be the case. Nevertheless it suggests that summaries should still be disclosed, even when releasing copies of originals would be cheaper:

"Charges will not be made to cover....excessive time spent on the preparation of new material when it would have been practicable within the policy set out in the Code, and more cost effective, to provide edited copies of a pre-existing document" [my emphasis] [Part III, paragraph 14]

"People will in general find it easier to describe the information they seek, rather than the documents they wish to see." [Open Government White Paper, paragraph 4.8]

If the guiding principle is, as this appears to suggest, the convenience of the requester, then the most satisfactory solution would be to allow applicants to present requests in their own way - not to exclude requests for documents. Someone who wants an answer to a particular question may need merely to put the question; but those who feel they need to see an existing document should be able to ask for it.

At present, the code implies that if a requester becomes aware of an unpublished report which may be of interest he or she cannot ask for it but must specify the particular information from it that is required. The limitations of this approach are self-evident: without seeing the document, the applicant will probably not be able to describe its contents. Even if some of its contents can be guessed, there may be other more relevant information in it whose significance cannot be predicted, and which the applicant may fail to ask for. We see no reason why access should be limited in this artificial way. The straightforward solution is for people to be able to ask for and obtain a report which they may ask for, or documents containing information of a kind they have described, subject to the deletion of any exempt information.

It is notable that a similar code of practice which has just been introduced in Hong Kong, rejects the government's approach to documents. Hong Kong's 'Code on Access to Information' which came into force on March 1 1995 is in most respects identical to the UK code. But it states:

"Where a request, whether written or oral, cannot adequately be met by an oral reply or provision of a standard leaflet, form, etc., the information may be given by -

• providing a copy of the relevant record or part thereof

• providing a transcript of the relevant record or part thereof

• affording a reasonable opportunity to inspect, hear or view the relevant record or part thereof, or

• providing a summary of the relevant record or part thereof.

So far as possible information will be provided in the form in which it exists. Where disclosure of certain information in a record is to be refused, access will normally be provided to the remaining part of the record."

The official guidance on the Hong Kong code adds that it is "preferable" to provide a copy of the original record, and that provision of a summary should be considered only if a document contains so much exempt information that a copy from which the exempt passages have been deleted would be "meaningless or misleading".

We are pleased to see that the Ombudsman has, in effect, rejected the government's approach to documents. He has stated:

"One aspect of the Code which has been criticised by some is that it puts no obligation on a department to let the public have access to documents as opposed to information ...My remit is to investigate and report whether bodies within my jurisdiction have complied with the requirements of the Code. I would not therefore criticise a body if it had fulfilled its obligations under the code without releasing copies of documents involved. However I normally construe a request for documents as meaning that a complainant is seeking all the information contained in the document specified and, save where all or part of that information can legitimately be withheld under the exemptions contained in Part II of the Code, I normally expect all that information to be released. Thus, while there may be exceptions, there are likely to be a number of occasions when...I conclude that the most practical way to release the information sought is to provide a copy of the actual document in which that information is contained." [HC 91]

This is an impressive attempt to overcome the code's defective approach to documents. However, unless the government accepts the implications of the Ombudsman's statement, it may not resolve the problem. The Ombudsman may urge a department to release a document - yet not be able to formally criticise it should it refuse to do so. In other cases, applicants who do not have the stamina to persist in taking a complaint through all the required stages up to the Ombudsman, may be dealt with by a department on the basis of the code and OPSS guidance and receive a precis rather than the full information. In our view, the government should now formally amend the code so as to require the provision of copies of original documents where these are asked for or where this would be the most complete way of providing the requested information.

Delay in responding to requests

The code sets out a target of 20 working days for responding to simple requests. The majority of requests from the Campaign appear to have received a response within this period.

However, the target was substantially exceeded in a number of cases:

• A straightforward request to the Department for Education took 34 working days. The request did not require the collation of information, and was eventually dealt with by forwarding to the Campaign a copy of a 2-sided summary of market research which had been previously provided to the DfE by the Central Office of Information.

• A series of related requests to departments, seeking information on the information they may have received from British Nuclear Fuels about the economics of the THORP reprocessing plant, elicited a series of replies to the effect that the departments had not themselves been supplied with the requested information. Providing this response however took the Department of the Environment 35 working days, the Cabinet Office and the Department of Trade and Industry 36 days each, and the Treasury 41 days.

• The Home Office failed either to reply to or acknowledge a request to it for internal guidance on an immigration matter, despite a reminder letter. Both the original request and the follow-up were sent to the Parliamentary Under Secretary of State. When the Campaign later contacted the minister's private office by telephone, 41 days after the request had been received, it confirmed receipt of both letters, but said the request had been forwarded to the Foreign Office, which was responsible for the guidance in question. The Foreign Office told the Campaign it had no record of having received the request from the Home Office. A copy of the application was then resubmitted directly to the FCO which provided the requested information 20 working days later.

Delay in carrying out internal review

Before a complaint can be made to the Ombudsman the department must be given the opportunity to review its own decision. The code contains no target time for conducting such reviews. In practice they may involve substantial delay:

• A request for internal review by the Health and Safety Executive took 105 working days. The problem on this occasion may have been exacerbated by unusual factors, including the HSE's move to new premises during the time in question. A subsequent internal review was completed by the HSE much more rapidly.

• A request to the Lord Chancellor's Department was turned down after 27 working days. The internal review of this decision, which eventually confirmed the original refusal, took a further 55 working days (ie 11 calendar weeks).

• A request to the DTI (already mentioned above) was turned down after a delay of 36 working days. The first stage of the DTI's subsequent internal review took 34 working days, and the second stage review an additional 63 working days. Excluding the time taken by the Campaign in preparing the appeals, the request and the appeals were under consideration by the department for a total of 133 working days, or six calendar months - an unacceptable delay.

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