77% of the public wanted a freedom of information act;

75% of Conservative voters supported it; as did 77% of Labour voters and 87% of Liberal Democrats;

75% of people who described themselves as "working class" backed FOI, compared to 83% of people who said they were "middle class";

there was little difference between readers of the popular papers (77% in favour) and the quality press (81%). Even amongst people who said they were not interested in politics, 73% backed an FOI act.

How likely are people to use the Right to Know Bill if it became law?

The use that made of the Data Protection Act may give some idea of the likely demand. The Act allows people to see computerised records about themselves held by public and private bodies. In the first four months after it came into force in 1987 the Data Protection Registrar estimated that "tens of thousands" of requests had been made.

How would the Right to Know Bill affect parliament?

It would strengthen MPs' rights. Individual MPs have no rights to information. They can ask questions, but cannot insist on getting answers. The Bill would give them, like everyone else, new rights to information. MPs could of course continue using the traditional methods of obtaining information - such as parliamentary questions and select committee inquiries.

Why does the Bill propose to reform the 1989 Official Secrets Act?

The 1989 Act makes it an offence to disclose official information about defence, security, international relations and law enforcement without permission. The Act has three main faults:

First, for some categories of information any disclosure - even one that does no harm - is an offence. A journalist or civil servant could be jailed without any evidence that the information released was harmful.

Second, there is no 'public interest' defence. Someone who is prosecuted cannot argue that the information benefitted the public, by exposing wrongdoing, negligence or corruption.

Third, there is no 'prior publication' defence. Someone can be convicted even if the information he or she released had been published before.

Under the Bill what would happen to someone who leaked classified secrets?

It would still be an offence to disclose them - provided the prosecution could show that 'serious damage' to the country's interests was likely. This is a much stricter test than the 1989 Official Secrets Act has. Under the 1989 Act:

It could be an offence to leak information, on any subject, sent to this country in confidence by another government or an international body like the European Commission - even if the information itself wasn't particularly sensitive. The prosecution would only have to show that other governments might be more reluctant to give us information in the future.

Any disclosure about a warrant which authorises telephone tapping (under the Interception of Communications Act 1985) or which allows the security services to break into premises (under the Security Service Act 1989) is an offence, even if it reveals that an innocent person was put under surveillance by mistake or that the information collected was abused - for example, by being sold to commercial bodies.

Any unauthorised disclosure by someone who has been a member of the security services, is an automatic offence. It doesn't matter if the information is nothing to do with state secrets (for example, if its about security service pensions) or has already been made public or refers to things which happened more than 50 years ago and cannot now do harm. The judge in the Spycatcher trial, Mr Justice Scott, said such absolute protection "could not be achieved this side of the Iron Curtain". He was wrong. It was introduced under the 1989 Official Secrets Act.

Under the Bill, no-one could be convicted for releasing information unless the prosecution showed that what he or she did was likely to cause serious damage.

What if the information showed that the government was doing something wrong?

Anyone prosecuted would be able to argue that disclosing the information was in the public interest. This would apply if the information showed that there was significant abuse of authority, negligence, danger to the public, misuse of public funds or other misconduct. The benefit of releasing the information would have to outweigh any possible harm. You wouldn't be able to argue that some trivial misconduct justified releasing defence secrets.

Wouldn't this encourage civil servants to leak information instead of using proper procedures to put things right?

No. Under the Bill, a civil servant would have to show that he or she had gone through the proper procedures but that they hadn't worked. The only exception would be in very urgent circumstances, where there wasn't time to use official channels.

An official whose real aim was to embarrass the government by leaking information - and who made no effort to try and get the problem put right first - wouldn't be able to use the "public interest" defence.

This only applies to officials. Someone else, like a journalist, would not have to show that he or she had first gone through official channels.

When might the 'public interest defence' be needed?

In July 1985 the French security services blew up the Greenpeace ship 'The Rainbow Warrior', killing one crew member. If the British security services were planning something like this, and a security officer 'blew the whistle' to prevent it, that person could be jailed under the Official Secrets Act. The Bill would give that person the chance to argue that what he or she did was justified.

What difference would the Bill have made in the case of the three businessmen accused of exporting arms equipment to Iraq?

The Bill would have provided a public interest defence for any 'whistleblower' who tried to expose what was going on. Officials may have been deterred from doing so by the prospect of almost certain conviction and imprisonment if charged under the Official Secrets Act. By creating a public interest defence the Bill would make it harder for the government to cover up such wrongdoing.

Some of the documents which came out in the trial would have been available under the BIll. For example, those showing that the government had secretly relaxed the restrictions on exports to Iraq.

Other documents could only have been withheld if the government could show that they fell within the Bill's exemptions. Most exemptions require proof that disclosure would cause "significant damage" - for example, to the "lawful activities of the security or intelligence services" or to the "lawful commercial activities" of the companies concerned. If the exports were unlawful, as was alleged, there would be no protection for commercial interests. And the government could not argue that any reference to the security services had to be withheld. Only those likely to cause significant damage could be protected.

Once there was evidence of serious wrongdoing - either over the export of the equipment or the treatment of the businessmen - even exempt information might be disclosed. The Commissioner could require this in the "public interest" under Clause 30 of the Bill if the benefits of disclosure outweighed any possible harm. During the trial the judge carried out a similar exercise balancing the 'public interest' in secrecy against the interests of ensuring a fair trial. Had there been no trial, the Commissioner could also have applied a public interest test to release the information.

How does the Bill apply to the private sector?

First, information about private companies held by a public authority would be accessible under the Bill, unless specifically exempt.

Second, the Bill creates a right of access to employment records which applies in the private as well as the public sector.

Third, the Bill would require companies to publish more information in their annual reports.

What kinds of records are covered by the right to see employment records?

The Bill would gives you access to records about you held by:

your current or former employer;

someone to whom you applied for a job - even if you didn't get it;

references sent to a prospective employer about you;

records held by "employment reference agencies" - bodies which collect information about people in order to supply it to employers. The best known example is the 'Economic League' - which supplies employers with information about people's political activities.

You would have the right to see and get copies of your employment records, and correct inaccurate information on them. If you had been damaged by inaccurate information you could go to court to get compensation from the holder of the record.

What information would companies have to publish in their annual reports?

The Bill amends the Companies Act 1985 to require companies which employ more than 50 people to publish in their annual reports:

how often enforcement action had been successfully taken against the company for breaching laws on the environment, consumer protection, health and safety at work, public safety, equal pay and discrimination;

brief details of what was involved in each case;

the incidence of serious injuries and fatal accidents in the workplace;

the total amount of compensation paid to people injured by the company's products or activities and any associated legal costs. The company would also have to make details of individual payments available on request - though the identity of the injured person would not be disclosed without that person's consent;

certain information about the company's pension funds would also be published.

Is any of this information publicly available now?

Most of it is not. Usually, only what takes place in open court - prosecutions and orders to pay compensation - are publicly reported. Even this information is difficult to find and is scattered across different local newspapers in different parts of the country. Other information, such as the notices served when a breach of the law is found, accident rates, and the vast number of "out of court" compensation payments are generally confidential.

The Bill would provide a single easily accessible record of a company's compliance with the laws in these areas.

How would making this information public help?

Companies sometimes do refer to these issues in their annual reports, but usually only in general and misleading terms. Surveys have shown that companies which have been prosecuted for fatal accidents or serious pollution usually did not mention this in their annual report. Instead they published self-congratulatory statements saying how much they cared about safety and the environment.

The Bill would make annual reports more honest. Companies which were doing badly would have to acknowledge the fact.

Because the information would be published in the directors' report, the directors would have to take a personal interest. They might be questioned by journalists and shareholders when the annual report came out and would be embarrassed by a bad record. Getting senior management personally involved is an essential step towards making companies take these issues seriously.

Shareholders would realise the financial implications of not meeting legal standards. For example, in 1990 some companies were fined up to a million pounds for a single safety or pollution offence - yet made no reference to these penalties in their annual reports.

Shareholders are increasingly concerned about such issues - either because of their own ethical concerns, or because they know that a company which cannot meet environmental and other standards will find it difficult to be profitable in the long term. The Bill would lead to greater shareholder and public pressure for improvements.

What happens under other countries' freedom of information laws?

Most requests come from individuals asking to see their own files. Consumer, environmental and public interest groups use the laws to press government to enforce standards or improve weak laws. Investigative journalists, historians, authors, professional bodies and politicians also use the Act.

In Australia, some 25,000 freedom of information requests were made in 1990-91. About 12,000 access to information requests were handled in Canada in the same year and a further 51,000 requests were made for personal files under Canada's Privacy Act.

Do people get the information they ask for?

In Australia, 74 per cent of all requests in 1990-91 were granted in full. In 22 per cent of cases, some information was disclosed and some withheld. Only 4 per cent of requests were denied altogether. Seventy per cent of requests were dealt with within the 30-day time limit allowed under the Act.

What kind of information is released?

In his 1991-92 annual report, the Information Commissioner of Canada - who deals with complaints under Canada's Access to Information Act - wrote:

"Here is an unscientific, random catalogue of a few revelations attributed to the efficacy of the Access to Information Act:

Cabinet instructions to the Royal Canadian Mounted Police on obtaining information about separatist activity in Quebec; a Revenue Canada audit discussing difficulties of tax collectors under a new regime of being gentle with taxpayers; memos and letters dealing with the admission to Canada of the former Iraqi ambassador Mohammed Al-Mashat; 17 background studies on the impact of free trade; Employment and immigration figures of money spent on job creation in the Prime Minister's riding [constituency]; an External affairs report on the percentage of Canadian wine served at 69 diplomatic posts (17 per cent). Significant, or trivial, the stories come out routinely day by day... Perhaps some of this information would have been released without a formal request. But can anyone doubt that, without the Access to Information Act, much of what now goes out would never have seen the light of day?"

Sometimes ministers have been forced to resign after freedom of information act disclosures. A minister in the Canadian government resigned after documents were released showing that she had spent five days in France at public expense in order to attend a one-hour meeting. In Australia, a minister was forced to resign after disclosures showed he had misled parliament about the way contracts under his control had been awarded.

Is it true that businesses use freedom of information to try and spy on their competitors?

That is what some critics of freedom of information laws claim. But examples of companies doing this are difficult to find. Businesses do use freedom of information laws to try and protect themselves from unfair treatment by government regulatory bodies. They use the laws to check that government inspectors are not treating competitors more favourably than themselves when enforcing standards. They use them to learn about new government proposals that may affect them; and to look for opportunities to bid for government contracts.

The Canadian Information Commissioner has commented: "A business enquirer, like any other, is entitled to receive and to use such information for any purpose, including self interest...there can also be public interest in business users acquiring this information. Pricing for government contracts may be more competitive; business checking on business can also help consumers." [Annual Report, 1991-92]

Do the governments in these countries get any benefit from their freedom of information laws?

Some government bodies resent the extra work involved in processing requests. But others see positive benefits. In 1986 the Australian Attorney General reported on a survey of agency views on the legislation.

Forty six authorities said that they had "greater awareness of the need for objectivity and accountability in dealing with the public" as a result of the act; 38 referred to "improved quality of decision-making". Other benefits were "improved communication and understanding between agency and clients" (33 agencies); "improved efficiency of records management" (27) and "greater public awareness of the role of the agency" (25).

The Australian Department of Social Security reported that the act had "served to lessen mistrust and dissatisfaction with decision-making and improved the quality of decision-making and its documentation". It had also "expanded the Department's effective review mechanisms by enabling clients who are adversely affected by a decision to see the full facts of the decision before deciding to seek a review. In some areas this has reduced the numbers of appeals. In others it has assisted clients to better prepare and present appeals and thereby has expedited the review process."

How much do these freedom of information laws cost?

The Australian Freedom of Information Act cost £4.7 million in 1990-91. The cost of the Canadian legislation in the same year was around £11.5 million (which includes the costs of the offices of the Information and Privacy Commissioners). Canada's Information Commissioner suggests that the official figure overestimates the costs and that the true figure may be substantially less.

Do these laws ever save money?

In the USA the Freedom of Information Act has been used to expose fraudulent claims being made under the "Medicaid" health insurance scheme by private nursing homes; it has shown that false data was supplied to government agencies by contractors to support an inflated price for their products; and it revealed losses of $14 million by a government agency because of bad loans resulting from the interventions of elected officials.

Disclosures under the Australian Freedom of Information (FOI) Act in 1986 led to the cancellation of an £266 million project. The Australian army had proposed to buy a 2.5 million hectare site in New South Wales for use as a tank training ground. Internal documents obtained by local residents showed that the site was too foggy and mountainous for its purpose. The Australian Senate Standing Committee on Legal and Constitutional Affairs later reported that:

"The material obtained under the FOI Act showed that the proposed acquisition would not have met the Army's requirements. Further, the material showed that the Department of Defence should have abandoned the proposed acquisition at a much earlier stage...It is a reasonable inference that the proposals might have gone ahead if groups opposing it had not gained access, through FOI, to documents with which to convincingly demonstrate the proposal's inadequacy."

The resulting saving was nearly 40 times the annual cost of the freedom of information legislation.

Campaign for Freedom of Information
Originally: 16 November 1992
Revised: 24 August 1995

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