The government's Freedom of Information (FOI) Bill is still biased against disclosure, permitting a remarkable degree of secrecy. Some of its features, listed overleaf, are so extraordinary that no-one would have believed they could appear in an FOI bill at all. They are likely to come under substantial pressure when amendments to improve the bill, proposed by an all party group of senior MPs, are debated at its Commons report stage on April 4 and 5.

The powers of the Information Commissioner, who will enforce the bill, are crucial. They depend on the type of information involved.

• In some areas the bill only allows information to be withheld if disclosure would 'prejudice' interests such as defence or the economy. If an authority fails to demonstrate 'prejudice' the Commissioner can order disclosure.

• In other areas, like safety investigations and the background to policy decisions, blanket exemptions apply to all information, even if disclosure would do no harm. There is no right to information at all. Some of this information will be vital to citizens, who will regard the Act with total disbelief when they discover it permits such secrecy.

• Authorities would have to consider disclosing some exempt information voluntarily where there is an overriding public interest - but the Commissioner could only recommend, not require, this. The government is now proposing amendments to allow the Commissioner to order disclosure in the public interest - but allow these orders to be vetoed by ministers and local authorities. Other bodies (like NHS trusts, the police and quangos) would have no direct right of veto and would have to ask a minister to exercise the veto on their behalf.

Ministers and local councillors are therefore given special rights to conceal their own failings. Ministers claim that to allow the bill's independent Information Commissioner, to force elected representatives to disclose information in the public interest would be "profoundly undemocratic" - an astonishing proposition.

According to Home Office Minister Mike O'Brien MP, amendments to allow the Commissioner to compel disclosure "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."1

Under the government's proposals:

1. Ministers and local authorities which are behaving in ways the public would find unacceptable will be able to veto disclosure, even if the Commissioner had concluded that there was an overriding public interest in openness.2

   Dame Shirley Porter would have been able to veto an order to disclose information about Westminster Council's housing sales policy in the public interest; Doncaster Council could have overruled an order requiring disclosure of improper expenses claims by councillors. If disclosures about the implications of part-privatising the air traffic control system were embarrassing, ministers could veto them.

2. Information about dangers to public safety will be exempt, including information about the falsification of nuclear quality control data by BNFL, railway crashes like the Paddington accident, abattoirs which fail to comply with BSE regulations, food premises responsible for food poisoning outbreaks, car dealers selling dangerous cars and similar matters.3   Safety authorities could even refuse to confirm or deny whether they hold such information.4

3. The facts on which government policies are based will be exempt (and could only be obtained on public interest grounds). 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.5

4. All information about a minister's private office would be exempt.6  Ministers could claim they could not have anticipated an impending crisis - while concealing the fact that explicit warnings had been received by their office.

5. Authorities would be able to secretly break commitments or cut standards by claiming that secrecy leads to greater efficiency, quicker decisions or lower costs. An authority could merely assert that in the 'reasonable opinion' of a 'qualified person' (usually a minister or a senior official) disclosure would 'prejudice the effective conduct of public affairs'.7  This opinion could not normally 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" 8

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 would not have to say whether any witnesses known to have come forward had been interviewed and when - or whether there had been unacceptable delays in following up leads. The inadequacies of the investigation into Stephen Lawrence's murder could be concealed under this exemption.9  Yet the Macpherson report explicitly recommended there should be no such 'class' exemptions for the police.

7. 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.10

8. 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.11

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.12

10. Authorities will be able to destroy records which someone has asked for, provided they had planned to do so before the request was made.13

11. 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

12. 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

13. The bill would remove some existing rights under the Tories' open government code, introduced in 1994, which applies to central government bodies.18

14. The bill may not come fully into force for 5 years.19

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."20  No-one listening to Mr Blair would have imagined he was referring to a bill as feeble as this.

1. Committee stage of the FOI Bill Standing Committee B, 12th sitting (morning) 8/2/00, col. 431.

2. Government 'New Clause 6' tabled as an amendment to the FOI Bill at report stage.

3. 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.

4. Clause 28(3) explicitly allows authorities to refuse to confirm or deny the existence of such information

5. 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.

6. Under clause 33(1)(d) all information which "relates to the operation of any Ministerial private office" is exempt, regardless of whether disclosure could cause harm.

7. Clause 34(2)(c)

8. Mike O'Brien, Committee stage of the FOI Bill, Standing Committee B,27/1/00 [Part II], col. 321

9. Clause 28(1) is a class exemption which includes any information which has at any time been held by the police for the purposes of an investigation. Yet the Macpherson report into the Stephen Lawrence murder inquiry said "We see no logical grounds for a class exemption for the police in any area."

10. 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, and could even involve information which the public could obtain under the bill, would not be relevant. The Data Protection Commissioner, Elizabeth France, who will also 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 Commissioner herself disputes. The offence cannot possibly be required under the FOI bill, which is not the result of any EU directive.

11. 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, disclose such information in the public interest, under clause 13. But if the authority did not want to, for example, because it suggested that the authority had known about the problem and done nothing, an order of the Commissioner could be vetoed

12. 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.

13. 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.

14. Clause 43(4) specifically allows such new exemptions to apply to requests which were received before the exemption was created.

15. Clause 6(3)

16. David Lock MP, Parliamentary Secretary, Lord Chancellor's Department, Standing Committee B, 11th sitting, Tuesday 1 February 2000 (afternoon), col. 386

17. David Lock MP, Standing Committee B, 14th sitting, Thursday 10 February 2000

18. The code requires (a) departments to publish the facts on which policies are based - the bill drops this requirement (b) authorities wishing to withhold policy information to show that disclosure would harm the frankness of internal discussions - the bill's exemption has no test of harm (c) requires government 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) (d) requires departments to give people reasons for decisions affecting them - the bill provides a far weaker version of this requirement.

19. 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).)

20. 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