Government Information on the Internet

NOTE: The Code of Practice on Access to Govenment Information was introduced by the Conservative Government in April 1994 as an alternative to a freedom of information act. The Code has now been superseded by the Freedom of Information Act 2000 which came fully into force on 1 January 2005. An archived version of the Code is available on the The National Archives website here.

Letter to Roger Freeman MP, Chancellor of the Duchy of Lancaster, about Hansard, statutes and government information on the Internet.

12 October 1995

I am writing, first, to make some suggestions about the publication of official information on the Internet and, second, to ask that something be done to remove the current restriction on the publication of Hansard and statutory materials on the Internet. The latter results from HMSO’s policy of commercially exploiting such Crown and Parliamentary copyright materials; the problems in this area are likely to exacerbated by the proposed privatisation of HMSO.

Most government departments now publish at least some information on the Internet. These include a number of interesting examples, including press releases, school inspection reports, air quality data; advice for travellers to foreign countries; occasional statistics; descriptions of the departments’ activities and guidance to individuals on making formal applications under certain statutory schemes.

Although a growing range of information is becoming available, the information appears to have been selected in a sometimes random fashion. For example, the text of the ‘open government’ Code of Practice is available on-line, but the parallel code on access to NHS information is not. And while the full text of 40 citizens charters can be read on-line, only a handful of government consultation documents are available – most dealing with Internet issues.

Few departments appear yet to have adopted a systematic approach to publishing information on the Internet, although many are clearly still experimenting. However, the sporadic nature of what most departments so far offer is best appreciated by comparing their sites to those of, for example, the Foreign Office or the Treasury, which are systematically publishing comprehensive information about their main activities.

The information on the Treasury’s web pages includes: the full minutes of the monthly meetings between the Governor of the Bank of England and the Chancellor; the full reports of the Chancellor’s Panel of Independent Forecasters; the Chancellor’s budget statement and complete budget documentation; the text of all speeches by senior officials and ministers; statements by the Chancellor of the Exchequer; Guidance to departments on the Private Finance Initiative; a guide to the Treasury’s senior management structure; all press releases and various other information.

The result is that anyone seeking substantive information about the Treasury’s policies and work has a good chance of finding it on the Treasury’s Internet pages. The same cannot yet be said for most other departments. We hope the government will encourage all departments to adopt this systematic approach.

Could I also suggest a number of items of information, which all departments should be encouraged to make available on the Internet? The starting point for these suggestions are the commitments that appear in the open government code of practice. We would suggest that each department should include:

* a prominent reference to the existence of the code itself, and to the fact that refusals to provide information may be referred via an MP to the Parliamentary Ombudsman. This would help to ensure greater public awareness of the code itself, which has been poorly publicised so far;

* a description of the department’s arrangements for handling code requests, for charging and for dealing with appeals. All departments have leaflets containing such information, but there seems to be no sign of them on the Internet;

* details of all internal guidance used by officials in their dealings with the public. The code commits departments to publishing such guidance. Yet there is at present no easy way of discovering what guidance each department has so far issued;

* copies of other related materials including departmental circulars and guidance notes;

* copies of departmental consultation documents and white papers, including those that are available as priced documents from HMSO;

* the text of bills and statutory instruments which the department is sponsoring in Parliament; notes on clauses; details of government amendments; and explanatory material relating to bills such as is required under the code’s commitment to publish “the facts and analysis of the facts” relating to major proposals;

* copies of speeches and of written evidence given by ministers and officials to select committees (where necessary, with the agreement of the committee);

* annual reports of departments and non-departmental bodies.

However, these suggestions would not themselves deal with one major obstacle to a more comprehensive access policy. This is the restriction on the electronic reproduction of Crown and Parliamentary copyright material. At present, neither Hansard nor Acts of Parliament or other statutory materials are available on the Internet, except to subscribers to extremely costly commercial services. This is the result of HMSO’s policy of not permitting the free electronic reproduction of such materials. Electronic publication is permitted only on normal commercial terms, involving the payment of significant fees or royalties.

By contrast, in the USA, neither government nor Congressional material is subject to copyright restrictions. As a result, it is possible to obtain on the Internet, free of charge, and in full: the Congressional record with the proceedings of both the Senate and House of Representatives; the Federal Register, containing federal rules; the entire US Code of Federal Regulations with all legislation; the text of all bills and (to be added shortly) amendments; Congressional voting records; reports of the General Accounting Office (the equivalent of our NAO); and all Supreme Court and Appeal Court judgements. In addition a considerable volume of information is available from the federal government itself. I enclose some sample pages.

As an illustration of what can be obtained from US sources, I was able – after a short search under the heading ‘freedom of information’ – to retrieve: the full text of the US Freedom of Information Act; the text of a 1995 bill to enhance access to electronic records under the Act and Congressional debates on it; a memorandum from President Clinton urging agency heads to comply with the spirit as well as the letter of the FOI Act; an executive order amending the rules on the classification of National Security information; the full text of a 450 page Justice Department guide to the interpretation of the Act; regular Justice Department bulletins on new policy developments; a House of Representatives publication entitled “Citizens Guide to Using the Freedom of Information Act”; and references to each federal agency’s annual report under the Act. A great deal of additional, well-informed analysis of these issues was also available from non-governmental sources on the Internet.

In a couple of hours I was able to download, for the cost of a local phone call, information which otherwise could have taken days to identify and weeks to collect. The volume, speed and accessibility of this information means that the ordinary individual can quickly accumulate a detailed dossier of up-to-the-moment information on US public policy matters. This could of course be done manually, but the time and effort involved is normally so great as to put it beyond most people’s resources. This enhanced access represents a significant empowerment of the citizen. People can now make a knowledgeable contribution to a debate from which they would previously have been excluded.

This is not the case in the UK. HMSO does not normally allow the electronic reproduction of Hansard or statutory materials, unless fees are paid to it on a normal commercial basis. The result is that these materials cannot be freely obtained on the Internet. Even if an organisation was prepared to pay for the right to put these materials on the Internet, it might not be permitted to do so. If it intended to make the materials available to anyone free of charge this would reduce the scope for further commercial exploitation. These materials are therefore available only through expensive commercial services which are beyond the means of the ordinary individual and most voluntary organisations. This omission is disappointing and frustrating and, I believe, wrong in principle. It is unacceptable that access to our laws, and our parliamentary proceedings, should be restricted in order that HMSO may exploit them commercially. This is of course the result of the government’s requirement that HMSO be self-financing.

It is worth noting the comments of the Canadian Information Commissioner (the ombudsman established under Canada’s freedom of information legislation) on Crown copyright. In his 1991-92 annual report he wrote:

‘the idea that statutes or judicial decisions can “belong” to somebody, even to governments is abhorrent in a democratic state. In the context of Crown copyright, who is the “Crown” if not the people?’

To give one small but significant indication of the implications of HMSO’s policy. The Campaign for Freedom of Information is shortly to open its own Internet web site, containing a summary of existing rights of access to official information and practical guidance to individuals on exercising these rights. We would like to include the full text of the relevant statutes. Several of these result from private members bills which the Campaign itself originally drafted and promoted. We have applied to HMSO for permission to publish these statutes on the Internet. Although we have had no formal response so far, my understanding is – at least on the basis of past precedent – that if we propose to allow free access to these materials, HMSO’s permission is likely to be withheld. The commercial logic behind such a decision would be clear and is likely to be put beyond question if HMSO is privatised. But it would be fundamentally wrong, we believe, to allow commercial considerations to take precedence over the need to ensure that materials of such central importance to a democratic society are freely available to its citizens.

British statutes can be obtained on-line by subscribing to the LEXIS service, published by Reed Elsevier. However, the cost is prohibitive for ordinary users: the service costs $270 an hour.

The high price of a subscription to the paper version of Hansard has been highlighted by a recent report, ‘What Price Hansard?’ published by the Hansard Society in October 1994 by Lord Lester, Lindsay Mackie and Michael Renshall. But the position in relation to the electronic version is even worse. Hansard is available on CD-ROM in a publication produced by HMSO with Chadwyck Healey Ltd. The price for a complete session covering both Houses of Parliament, including VAT is around £2,000. However, as the disks do not appear until a couple of months after the end of the parliamentary recess, users may have to wait up to 5 months after the event to read what was said. To get more recent information, a separate subscription to the JUSTIS online service produced by Context Ltd is available at an annual cost (including a one-off registration fee and VAT) of £521, plus a search charge of £2.11 a minute. Yet this does not provide the full text of Hansard: it is essentially an index and bibliography. So having spent over £2,500 on subscriptions to electronic services a user who wants to know what was actually said in Parliament a few days or weeks ago still ends up having to buy the paper copy of Hansard, at a daily price (for both Houses) of £11.70.

It is difficult to understand why access should be so poor, even for those prepared to pay. Because the proceedings of Parliament are rapidly transcribed into electronic format, they could be made available on-line within an hour or two. I understand that Members of Parliament are about to be given such on-line access. The same access could presumably be given to the wider public via the Internet at minimal extra cost.

This is precisely what is now being done in Australia. The Australian Hansard has been made available on the Internet on a trial basis, and proceedings of both the House of Representatives and the Senate can be read on-line, free of charge, the following day. I enclose some sample pages, which also illustrate the additional information available from this source. Why could this example not be followed by the UK?

There are already one or two examples of UK statutes which have been made available on the Internet by Australian and American universities, in ignorance of or perhaps disregard for, Crown copyright, and which are available to any Internet user anywhere in the world including the UK. Presumably UK users may sooner or later be tempted do so also, since it is now extremely easy for printed material to be ‘scanned’ onto computer and thence onto the Internet. Will it be feasible for HMSO to enforce Crown and Parliamentary copyright in the courts? To attempt to do so would have uncomfortable echoes of the Spycatcher affair with, if anything, even greater capacity to attract international ridicule: it is one thing to ask the courts to restrain disclosures about the security services – quite another to suppress the publication of our own country’s laws. Would it not be more realistic to accept from the outset that such materials should be freely available on the Internet – both because it is right in principle, and because any other approach is likely to be unenforceable?

It is already HMSO’s policy to allow the free reproduction of statutory materials in hard copy provided this is done in a “value added” context, in conjunction with related text, commentary, annotation or cross referencing. At the very least the same principle should apply to reproduction in electronic form.

A more fundamental approach would be to abolish or waive Crown and Parliamentary copyright in certain if not all materials. The Hansard Society report, referred to earlier, proposed that this should be done for all Bills, Acts, subordinate legislation, Parliamentary papers, Parliamentary debates and select committee reports.

In New South Wales, the Attorney General has issued a formal notice declaring that it will not enforce copyright in the legislation of New South Wales, which may be freely reproduced subject to a number of modest conditions (a copy, from the journal Computers & Law is enclosed). The Australian Hansard pilot is a further precedent. The US approach, in which official materials are not subject to copyright at all would be a more comprehensive approach.

These proposals run directly counter to current trends in HMSO pricing, which are already a matter of substantial concern. At present HMSO is at least subject to a degree of political oversight, and the recent decision to reduce the cost of a subscription to the weekly edition of Hansard (though not to the daily) suggests at least some responsiveness to public pressure. However, privatisation will ensure both that HMSO acts from commercial motives, without regard for the public interest in making official information widely and freely available, and remove the opportunities for political influence over pricing decisions. These would in our view be deeply undesirable developments.

Yours sincerely,

Maurice Frankel

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