A Guide to the Right to Know Bill

The Right to Know Bill was a freedom of information bill drafted by the Campaign and introduced by Mark Fisher MP in 1993. The bill also proposed to reform the Official Secrets Act. The bill completed its committee stage but was then blocked by the Government at its report stage in July 1993 after a total of 21 hours debate in the Commons and in committee.

This guide refers to Draft 1.0 of the bill, dated 7.7.92 which is subject to consultation and revision

INTRODUCTION

The Bill has four main sections. These:
create a right of access to official records held by public authorities
reform the Official Secrets Act 1989
create a right of access to employment records
require companies to publish more information in their annual reports.

1. ACCESS TO OFFICIAL RECORDS

Introduction

This Part of the bill is identical to the main provisions of the Right to Information Bill, introduced by Robin Corbett MP and Roy Hattersley MP in February 1992 and to the Freedom of Information Bill introduced by Archy Kirkwood MP in January 1992.

It creates a general public right of access to all official records held by public authorities. Information can only be withheld if it falls into one of the bill’s exempt categories. In certain circumstances even exempt information may be disclosed in the public interest. The bill would be enforced by a Commissioner and Tribunal with powers to order disclosure.

Scope of the bill

The bill applies to “public authorities” which as defined include government departments, nationalised industries, executive agencies, government advisory committees, NHS bodies including health authorities and trusts, local authorities, and any other body which receives at least half its funds from public funds or to whom ministers appoint one or more members.

Records subject to the bill

The bill applies to information recorded in any form, including non-paper records. Records created before the bill comes into force would be accessible, though with some restriction during the bill’s first year. Information which authorities have obtained from third parties such as companies would be accessible.

Applying for access

Applications would be in writing, identifying the records wanted or providing enough information to enable the authority, with reasonable effort, to identify the relevant records. An authority would be under a duty to help people make applications and also to make available (a) a code of guidance to help applicants (b) an index describing the kinds of records it holds and (c) an index of records it has released to previous requesters. Once a record has been requested an authority may not destroy it. An official who knowingly does so would commit an offence.

Giving access

Access would have to be given within 30 days of an application. Where the record contains third party information the period is extended to 45 days to allow the third party to be notified and make representations. Applicants would be able to inspect records or obtain photocopies. Fees could be charged only for photocopying (limited to £1 per 10 copies) and postage. Copies of or print-outs from non-paper records such as computer discs could also be obtained.

Correction of inaccurate information

Authorities would be required to correct inaccurate information. Where the inaccuracy could not be proven, or where there was a difference of opinion, the authority would have to indicate on the record that the information was disputed. “Inaccurate” is defined as incorrect, incomplete, misleading or not relevant to the purpose for which the record is held.

Compensation for damage

Anyone damaged by inaccurate information would be entitled to compensation for the damage and any associated distress, unless the authority could show that it had taken reasonable care to ensure accuracy.

Exemptions

An authority would not be required to give access to exempt information. But it could not withhold the whole of a record if only part was exempt. Applicants would have to be told that information had been withheld, the specific exemption involved, the reasons it was thought to apply, and of the procedures for challenging the decision. The exemptions apply to:

(1) Defence, security, international relations

Information whose disclosure would be likely to cause significant damage to defence, the work of the security and intelligence services or international relations.

(2) Law enforcement

Information whose disclosure would be likely to (a) result in the commission of an offence (b) impede significantly the prevention or detection of offences or the apprehension or prosecution of offenders by lawful means (c) facilitate an escape from legal custody (d) prejudice the fair trial of a person against whom proceedings have been brought or (e) endanger the safety or life of any person.

(3) Legal professional privilege

Communications between an authority and its legal advisers about actual or possible litigation involving the authority are exempt.

(4) Policy advice

The advice, opinions or recommendations given by an official or a Minister for the purpose of policy formation are exempt. However, this exemption does not protect –

* factual information; its analysis, interpretation or evaluation; or projections based on it

* expert advice on a scientific, technical, medical, financial, statistical, legal or other matter

* guidelines used in taking decisions about the rights of persons; or the actual decisions and reasons for them

* information about the personal affairs of the applicant.

(5) Personal privacy

Information whose disclosure would involve the invasion of the privacy of an individual is exempt. Information about the affairs of someone who has died is also exempt unless (a) disclosure is in the public interest because it tends to indicate that a public authority contributed to the death, or (b) the next of kin has consented to disclosure. A deceased’s medical records would not be disclosed, even to the next of kin, unless relevant to a legal claim.

Information about disciplinary proceedings against an official would be accessible if (a) they related to a matter of public interest or (b) they related to a complaint by an individual, in which case they would be available to that individual. In other cases disciplinary proceedings would be exempt.

(6) Health records

Information on an applicant’s health record could be withheld if disclosure would be likely to cause serious harm to the applicant’s health. This is in line with the Access to Health Records Act 1990 and the Data Protection Act 1984.

(7) Economic and commercial affairs

Information is exempt if disclosure would be likely to cause significant damage to –

* the economy, by prematurely revealing any change in taxation, exchange or interest rates or other instruments of economic management;

* the financial interests of the authority, by giving unreasonable advantage to any person negotiating a contract with the authority;

* the authority’s position in pay negotiations with its employees, by revealing information prepared for those negotiations;

* the lawful commercial activities of the authority, by revealing information to a competitor.

The last exemption does not apply if the damage to the authority results from consumers exercising more informed choice about the goods or services they buy; and it does not protect information about any public safety hazard;

(8) Competitive position of a third party

Information obtained by an authority in confidence from a third party is exempt if disclosure would, by revealing information to a competitor, be likely to cause significant damage to the lawful commercial or professional activities of the third party. This exemption does not apply if the damage to the third party results from consumers exercising more informed choice; and it does not allow information about public safety hazards to be withheld.

(9) Authority’s ability to obtain information

A limited exemption protects certain information which is supplied voluntarily to an authority if disclosure would cause significant damage to the authority’s work by causing the supply of that information to dry up in future. The exemption has a narrow scope and does not apply if (a) the authority has the legal or contractual power to demand the information, (b) it can obtain it from other sources (c) the information is submitted in the hope of obtaining some advantage for the submitter or of dissuading the authority from taking some adverse action against it (d) the information is submitted in response to a consultation by the authority about proposed changes in policy or legislation (e) it is an employment or other reference.

Substantial and unreasonable interference with the authority’s work

Applicants would be able to make broad requests for all records on a particular subject. But if such a request involved a substantial number or volume of records (eg “all records relating to environmental pollution”), and locating them all would interfere substantially and unreasonably with the authority’s work, the request can be refused. However:

* the authority can only refuse if it has taken reasonable steps to help the applicant make a new application which it will be able to grant;

* the authority must report every refusal under this clause to the Commissioner, who will be able to monitor any unreasonable behaviour.

Broadcasting materials

Information or recordings which were obtained or produced in order to be broadcast by the BBC (the only broadcasting body falling with the definition of a ‘public authority’) are not subject to the bill. Other types of information – eg about administration – would be accessible.

Disclosure in the public interest

Even exempt information may be disclosed in the public interest if there is reasonable evidence of significant (a) abuse of authority or official negligence (b) injustice to an individual; (c) danger to health or safety (d) unauthorised use of public funds.

In such circumstances it is no longer self-evident that the public interest is best served by continuing to keep exempt information confidential. The Commissioner would be able to consider whether disclosure was justified in the public interest, taking account of all the circumstances, including any damage or benefit that might result, and could order disclosure. Disclosure would not automatically follow, particularly if the abuse was minor and the potential damage from disclosure significant.

Notice to third parties

Before an authority gives access to third party information it must notify the individual or company from whom the information was obtained. If the third party considered the information was exempt it could appeal against the proposed disclosure to the Commissioner or Tribunal.

Notification of benefits

The bill contains a special procedure to help non-commercial organisations get in touch with particular classes of individuals to notify them of benefits they can claim or invite them to take part in research likely to help them. Their names and addresses could not be disclosed under the bill, as this would breach their privacy. Instead the authority would have to send a notice from the organisation to the individuals concerned, provided this did not interfere substantially and unreasonably with he authority’s work.

Decision-making guidelines

An authority would have to make available any guidelines it uses in making decisions affecting the rights or obligations of individuals, such as the internal rules for determining eligibility for benefits or liability for tax. If an authority failed to do so and an individual suffered some disadvantage as a result he or she would be entitled to compensation and to have an unfavourable decision set aside.

Appeals

The bill would be enforced by a Commissioner and Tribunal similar to the Data Protection Registrar and Tribunal. These would provide a cheaper and less intimidating remedy than the courts and permit a consistent body of case law to be built up more quickly.

The first stage in challenging a decision would be to ask the authority itself to conduct an internal review of its decision. Experience in Australia is that such internal review leads to more information being released in about a third of all cases, probably because more senior officials are involved. If an authority failed to complete the review within 14 days the applicant would be free to complain to the Commissioner.

The Commissioner

The Commissioner would have the power to examine any record including one containing exempt information and make enforceable orders requiring authorities to comply with the bill. Failure to comply, or obstruction of an investigation, could be referred to a court and dealt with by it as contempt of court.

The Tribunal

Appeals against the Commissioner’s decisions could be made to a tribunal, whose chairman and deputy chairman would be lawyers.

Each party to an appeal would normally pay its own costs. But the Tribunal may order the authority to pay the applicant’s costs where an appeal has raised an important issue of principle. Any party which had been responsible for frivolous, vexatious, improper or manifestly unreasonable action or delay could be ordered to pay the costs of other parties.

Defamation etc

An authority or its employees could not be sued for defamation, breach of confidence or breach of copyright for disclosing information under the bill. However, a person who obtains a record under the bill and publishes it would have no special protection against action for defamation.

Reprinting an official record released under the bill would not infringe Crown copyright. But a third party who supplied a document to an authority retains copyright even if it is released under the bill. This prevents an applicant commercially exploiting someone else’s material. The normal “fair dealing” defence under copyright law would allow the applicant to publish reasonable extracts or the whole document if it is short, for the purpose of criticising it or reporting on current events.

An official who mistakenly disclosed information in good faith in the belief it was required under the bill would not commit an offence under the Official Secrets Act or any other statute.

2. OFFICIAL SECRETS

This Part of the bill replaces the 1989 Official Secrets Act with new measures. The ‘absolute’ offences of the 1989 Act would be abolished: the prosecution would have to show that harm was likely to result from a disclosure. The bill also creates new defences of prior publication and disclosure in the public interest.

Protected material

The bill protects information, documents or articles relating to defence, international relations or the lawful activities of the security and intelligence services whose unauthorised disclosure would be likely to cause serious damage to the UK’s interests. Information is also protected if its unauthorised disclosure would be likely to result in the commission of an indictable offence, create a serious obstacle to the prevention or detection of such offences or the apprehension or prosecution of suspected offenders, or cause serious danger to safety or life.

Anyone who intentionally or recklessly discloses protected material, knowing that it is protected, commits an offence. The maximum penalty remains as at present, 2 years imprisonment and/or a fine.

Prior publication defence

It would be a defence to show that the protected material had previously been made public, whether in the UK or elsewhere.

Public interest defence

It would be a defence to show that:

* there was reasonable evidence that the disclosed material related to abuse of authority, official negligence, injustice to an individual, danger to health or safety, unauthorised use of public funds, or other misconduct; and

* in the circumstances the disclosure was justified in the public interest having regard both to any benefit and any damage that was likely to result.

The fact that there was abuse of authority, etc would not in itself be a defence – it is only in these circumstances that the defence could be argued. The defence involves weighing the benefit against the damage. Exposing a minor abuse of authority would not justify disclosing information likely to cause serious damage: the benefit would have to outweigh the potential damage.

In the case of a civil servant or government contractor, the public interest defence would only be available if the person had previously taken reasonable steps to comply with established procedures for drawing the abuse etc to the attention of the appropriate authorities, without effect. The only exception would be if the matter was of such urgency that these steps could not reasonably be expected to be effective.

3. ACCESS TO EMPLOYMENT RECORDS

The bill would give individuals a right of access to their own employment records.

Definition of “employment record”

The right of access applies to a record held by an employer about an individual who is or has been an employee or who has applied for employment. It also applies to records of “employment reference agencies”, that is bodies who collect information about individuals in order to supply it to employers. The best known example is the Economic League.

Applications

An individual would have to apply for access in writing to the holder of the record. Once an application has been received the holder of the record would be prohibited from destroying the record, or deleting information on it – failure to comply would be an offence. Access would have to be given within 30 days. Any unintelligible terms on the record would have to be explained.

The employer would have to state whether it had obtained information about the applicant from an employment reference agency and if so give the agency’s name, the date, and inform the applicant that he or she can apply directly to the agency for access to any record which it holds.

Exempt information

Information can be withheld if its disclosure would be likely to cause significant damage to defence, the lawful activities of the security or intelligence services, international relations or would interfere with law enforcement, the privacy of others, or – in the case of health information – if disclosure would cause serious harm to the health of the applicant. The precise exemptions are identical to the corresponding exemptions under Part 1 of the bill.

Corrections and compensation

There is a right to correct inaccurate information and to be compensated for damage or distress resulting from its use. These provisions are identical to the corresponding clauses of Part 1 above.

Enforcement

This Part of the bill would be enforced in the courts.

4. DISCLOSURE OF INFORMATION BY COMPANIES

The bill would amend the Companies Act 1985, to require the disclosure of additional information in companies’ annual reports. This Part is an expanded version of the Corporate Safety & Environmental Information Bill introduced by Jeff Rooker MP in December 1991.

The bill applies to companies with 50 or more employees: these are companies defined as ‘medium’ and ‘large’ under the Companies Acts. (Annual reports of small companies are in any case unlikely to have significant circulation.)

The bill requires companies to make public various types of information which will already be known to them – they would not have to collect new information. Annual reports would have to show:

* The numbers of occasions on which enforcement action was taken against the company under various laws.

These are listed in the bill and include legislation dealing with consumer protection, public safety, environmental protection, health and safety at work, racial and sexual discrimination, equal pay and unfair dismissal. Any formal notices, orders or injunctions under any of the specified powers would have to be disclosed, unless they had been set aside on appeal. Convictions for offences under such legislation would also have to be specified.

* The number of deaths and serious injuries to employees during the year.

These would be expressed as the ‘incidence rate’ – the number of injuries per 100,000 employees. This would permit the company’s performance to be compared with the industry average, and its own record in previous years.

* The total amount of compensation paid to persons injured by the company’s activities or products, and the total of any associated legal costs

Details of any specific payments would not be required in the annual report but would have to be made available on request. No information about identifiable individuals could be released without their consent or their next of kin’s.

* Pension funds

The bill will require disclosure of certain information about company pension funds, where this can be done within the scope of the bill (ie by amendment to the Companies Act rather than the specific legislation on pension funds).

(The provisions on pension funds are currently being drafted: suggestions for what information should be required would be welcome.)

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