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Failure to introduce promised information laws “depriving the public of information”

People are being denied vital safety information and information on personal files held about them because the government has failed to introduce two new legal rights to information, promised two years ago, according to the Campaign for Freedom of Information.

The Campaign wants the government to introduce the promised legislation immediately. It also wants to know whether the government has dropped plans for a code of practice on access to local authority information. And it is critical of proposed changes to the rules governing disclosure of information by ministers.

In the ‘Open Government’ white paper of July 1993 the government promised two important new legal rights:

  • a right to health and safety information, such as information about the safety of food, consumer goods, transport systems, public places and the workplace; and
  • a right for people to see non-computerised personal files held on them by public authorities. (Computerised files are already accessible under the Data Protection Act.)

A confidential Railtrack memorandum, leaked earlier this week, illustrated the need for the promised legislation. It warned of dangerously low railway safety standards and revealed that two unpublicised incidents in the last 6 months could have led to disasters on the scale of the Clapham rail crash, in which 35 people died. The Campaign says that only by forcing public authorities to release such information can the public be protected against dangerous complacency.

But there has been no move to introduce the promised disclosure legislation in either of the two parliamentary sessions since the white paper. The delay is particularly damaging because the government has said that neither of the laws will apply to information collected before the legislation comes into force, the Campaign says. In a letter to Mr Roger Freeman, the Chancellor of the Duchy of Lancaster, who is responsible for open government, the Campaign’s director Maurice Frankel says: “Information which is currently being acquired by public bodies may be permanently inaccessible, even after the new legislation is introduced. With every day that passes public authorities accumulate more information which will not be subject to these new rights. This will needlessly deny people information to which the government has accepted they should have a right”.

Some information will be available under the non-statutory Code of Practice on Access to Government Information, introduced last year. But the code does not apply to all public bodies and does not override the statutory restrictions which prohibit the release of some information. The Campaign is urging the government to introduce the legislation promptly, and to apply the new laws retrospectively, to cover information collected in the past.

The delay is also undermining an existing right to environmental information. The Environmental Information Regulations 1992, which implement a European directive, are supposed to give the public the right to see environmental information held by public authorities. But the regulations contain no enforcement mechanism. People who are wrongly refused information cannot enforce their rights. Their only option is judicial review, which does not allow a decision to be reviewed on its merits and in any case is prohibitively expensive. The new legislation is supposed to deal with this problem. The government has said that a new tribunal may be set up to enforceboth the proposed safety law and the existing environmental regulations – a welcome move. But the delay in introducing the new law is preventing this development and, says the Campaign, “contributing to the continuing ineffectiveness of these important regulations”.

The letter also asks Mr Freeman whether the government has dropped its proposal that local authorities should be subject to an open government code of practice. The white paper proposed three new codes, for central government, for the NHS and for local authorities, allowing dissatisfied applicants to complain to the appropriate Ombudsman. But although the first two codes have been introduced, there has been no local government code. Instead the local authority associations have issued a ‘Good Practice’ note encouraging councils to introduce their own individual access policies. The Campaign says that this is inadequate. Councils can decide to ignore the recommendations altogether, it points out. And even where a council does introduce its own policy, applicants who are refused information may be unable to complain to the Local Ombudsman – and so be unable to challenge refusals.

The Campaign is also critical of a proposed change to the government’s ‘Questions of Procedure for Ministers’. This says that ministers should be “as open as possible” with Parliament and the public, but proposes a new exemption permitting information to be withheld “when disclosure would not be in the public interest”. Although the government claims that the rewording is based on the Nolan committee’s recommendations the Campaign says that the Nolan report did not propose this “public interest” exemption. The Campaign points out that disclosure to the public is now governed by the Code of Practice on Access to Government Information, which does not permit information to be withheld for any reason so broad as “the public interest”. Yet the code is not even mentioned in the proposed new guidance. Mr Frankel said: “The failure to make any reference to the Code implies that ministers may withhold information on grounds other than those specified in the Code, subject only to their own assessment of ‘the public interest’. This would be wholly unacceptable.” The Campaign wants the government to make clear that this will not be the case.

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