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A Freedom of Information Bill

Drafted by
The Campaign for Freedom of Information

Draft 1.5
2 May 1997


This preliminary draft was produced at the time of the 1997 general election in order to demonstrate that FOI legislation could be introduced without great demands on Parliamentary time, possibly in combination with measures to implement a new EU Data Protection Directive. This bill is a shortened version of the Campaign’s previous draft bills, with various procedural and other matters left to secondary legislation.

FREEDOM OF INFORMATION BILL

ARRANGEMENT OF SECTIONS

PART I
RIGHT TO KNOW

Section

1. Purposes
2. Right of access
3. Exempt information
4. Keeping of records
5. Duty to assist applicants, etc
6. Information Commissioner
7. Enforcement

PART II
PROTECTION FOR PERSONS MAKING
PUBLIC INTEREST DISCLOSURES

8. Disclosure in the public interest

PART III
DATA PROTECTION

9. European Data Protection Directive

PART IV
GENERAL

10. Regulations
11. Interpretation
12. Short title, commencement & extent

FREEDOM OF INFORMATION BILL

PART I
RIGHT TO KNOW

Purposes

1. (1) The purposes of this Part of this Act are –
(a) to extend progressively the right of the public to have access to information held by public authorities in order to further the public interest by promoting –
(i) better informed discussion of public affairs, and
(ii) greater accountability of public authorities;
(b) to enable individuals to see information held by public authorities about their affairs and to ensure that it is accurate and is held in accordance with the Data Protection Principles;
(c) to ensure that persons are given reasons for decisions taken by public authorities which affect them;
(d) to ensure that guidelines used by public authorities in making decisions affecting persons are publicly available.
(2) This Act shall be interpreted so as –
(a) to further the purposes specified in subsection (1) above; and
(b) to facilitate and encourage the disclosure of information, promptly and at the lowest reasonable cost.

Right of access

2. (1) It shall be the right of any person to obtain access, subject to the provisions of this Act, to an official record held by a public authority.
(2) The right of access under subsection (1) shall apply notwithstanding any statutory or common law restriction or prohibition on the disclosure of information other than one contained in an order of the court but where such a restriction or prohibition applies to information falling within section 3(2)(d) –
(a) the information shall not be disclosed under this Act unless it is in the public interest to do so; and
(b) before making an order under section 7(1) requiring that such information be disclosed the Information Commissioner shall consult the Data Protection Registrar.
(3) A public authority to whom a request for an official record has been made under this Act shall –
(a) provide a copy of the requested record to the applicant as soon as practicable and in any case within a period of 20 working days from the date on which the request was made, except insofar as the record contains information obtained by the authority from a third party in which case the relevant part of the record shall be provided within a period of 35 working days from that date; and where, in either case, the requested record has not been provided within the specified period the request shall be deemed to have been refused;
(b) not be required to give access to any part of a record which contains exempt information within the meaning of section 3(1); but an authority shall not refuse to give access where this can be done by providing a copy of the record from which any exempt information has been excluded;
(c) in any case where it withholds exempt information, notify the applicant that it has done so specifying under which of the paragraphs in section 3(2) and for what reasons the information is considered so to be and the procedure by which an appeal against its decision may be made;
(d) make no charge to the applicant for the provision of information other than –
(i) a reasonable charge which shall not exceed the costs of making any copies of records and (if applicable) supplying them to the applicant;
(ii) a reasonable hourly charge which shall not exceed the sum of [£X] per hour to cover the time spent in compiling the information in response to the request, but no such charge may be made for the first five hours of time so spent unless the request is made for a commercial purpose when an additional charge prescribed by regulations may be made
and shall reduce or waive any such charges referred to in subparagraph (ii) where the disclosure of the information is in the public interest;
(e) at the request of the applicant correct any information held by it relating to the applicant which is inaccurate and make any other amendment necessary to ensure that it is held in accordance with the Data Protection Principles.
(4) Any record which is required to be made available under this section shall be made available to any person on request –
(a) in the form in which it is held unless the applicant requests that it be made available in another form and it is practicable to do so; and
(b) if the applicant so requests and it is practicable to do so, for inspection by the applicant.

Exempt
information

3. (1) Information is exempt if its disclosure would –
(a) be likely to have any of the effects specified in the following provisions of this section; and
(b) be contrary to the public interest.
(2) The effects referred to in subsection (1)(a) are:
(a) to damage the defence or international relations of the United Kingdom;
(b) to damage the lawful activities of the security or intelligence services;
(c) to impede the prevention, investigation or detection of crime or the apprehension or prosecution of offenders; to facilitate an escape from legal custody; to prejudice the fairness of legal proceedings; or to endanger the safety or life of any person or the safety of a rare or endangered species;
(d) to involve the unwarranted invasion of the privacy of an individual other than the applicant or the person on whose behalf an application has with proper authority been made;
(e) by disclosing commercially confidential information
(i) relating to the authority or
(ii) supplied to or obtained by the authority from a third party
to cause unreasonable damage to the competitive position of that authority or party; and in considering the public interest in relation to such information particular regard shall be had to the need to (a) ensure that the expenditure of public funds is subject to effective oversight; (b) keep the public adequately informed about the existence of any danger to public health or safety or to the environment; (c) ensure that any statutory authority with regulatory responsibilities for the third party is adequately discharging its functions;
(f) to damage the economy by the premature release of the proposed introduction, abolition or variation of any tax, duty, interest rate or instrument of economic management; or to impede the assessment or collection of any tax or duty;
(g) to damage the position of the authority in negotiations relating to the pay or conditions of employment of its employees by revealing information compiled for the purpose of those negotiations;
(h) to damage the work of the authority by impairing its ability to obtain similar information in future, where the information in question was supplied to it in confidence by a third party who –
(i) was not and could not have been required by statute, contract or otherwise to do so; and
(ii) did not supply it in the expectation of receiving in return some advantage or of affecting any change in the policy or practice of an authority or in the framing of legislation that would be of benefit to it;
(i) by revealing the advice, opinion or recommendation tendered by any identifiable individual in the course of that individual’s official duties for the purpose of the formulation of the policy of the authority –
(a) to damage the authority’s ability to give adequate consideration to a matter concerning which no final decision has been taken and which remains the subject of active consideration; or
(b) to prejudice the candour of any similar advice, opinion or recommendation to a degree likely to damage the quality of any resulting decision
but information is not exempt under this paragraph insofar as it consists of factual information; or of the analysis, interpretation or evaluation of or any projection based on factual information; or of expert advice on a scientific, technical, medical, financial, statistical, legal or other matter other than advice to which paragraph (j) below applies; or of guidance such as is described in section 5(2)(c); or of information relating to the personal affairs of the applicant; or of the reasons for any decision taken in relation to the applicant;
(j) damage the authority’s position in any actual or contemplated legal proceedings by revealing the legal advice which it received in anticipation of or connection with such proceedings;
(k) interfere substantially and unreasonably with the work of the authority by requiring it to identify and retrieve a substantial volume of records, provided that before refusing to provide information on these grounds the authority has taken reasonable steps to assist the applicant to reformulate the request so as to avoid causing such interference.

Keeping of records

4. A public authority shall create and preserve such records as are necessary to document adequately its policies, decisions, procedures and transactions and to ensure that records in its custody, including those held in electronic form, are maintained in good order and condition.

Duty to assist applicants, etc

5. (1) A public authority shall take reasonable steps to assist any person seeking to exercise any right under this Act.A public authority shall create and preserve such records as are necessary to document adequately its policies, decisions, procedures and transactions and to ensure that records in its custody, including those held in electronic form, are maintained in good order and condition.
(2) A public authority shall, taking any necessary steps to avoid the disclosure of exempt information, make available –
(a) a guide sufficient to enable any person wishing to apply for records under this Act to identify the classes of records held by it, the subjects to which they relate, the location of any indexes to those records and, so far as is practicable, facilities to enable those indexes to be consulted by any person;
(b) an indexed register containing copies of records released in response to requests under this Act other than records relating to the personal affairs of the applicant;
(c) any guidance used by the authority in relation to its dealings with the public or with corporate bodies;
(d) to any person the reasons for any decision taken by it in relation to that person.
(3) The materials referred to in paragraphs (a) to (c) above shall be made available –
(a) for inspection by any person without charge
(b) by supplying a copy to any person on request for which a reasonable charge to cover the costs of copying and supplying them may be made, and
(c) on the Internet, provided that the materials are held by the authority in electronic form and it is practicable for it to so make them available.
(4) The Secretary of State shall annually lay before each House of Parliament a report on the operation of this Act.

Information Commissioner

6. (1) For the purposes of this Act there shall be an officer known as the Information Commissioner (the “Commissioner”).
(2) The Information Commissioner shall be appointed by Her Majesty by Letters Patent on an Address presented by both Houses of Parliament following a motion by the Prime Minister acting with the agreement of the Leader of the Opposition and the Chairman of a select committee of the House of Commons who has been designated by the Speaker of that House for this purpose.
(3) The Commissioner shall –
(a) investigate any complaint that an authority has failed to comply with any requirement of this Part and may initiate an investigation in the absence of a complaint;
(b) perform his or her functions under this Part so as to further the purposes specified in section 1(1) above;
(c) conduct an investigation with as little formality and as expeditiously as the requirements of this Part and a proper consideration of the matters concerned permits;
(d) arrange for the dissemination of such information as he or she thinks fit about the operation of this Part and other matters within the scope of the Commissioner’s functions and may give advice to any person as to any of those matters;
(e) annually lay before each House of Parliament a report on the operation of this Part and may from time to time lay before each House of Parliament such other reports on its operation as the Commissioner thinks fit
(4) The Commissioner may decline to investigate a complaint in relation to any decision or action of a public authority unless before making it the complainant has complied with any procedure prescribed by Regulations for seeking the internal review by the authority of any such decision or action and, following a period of 15 working days from the date on which the application for review was received, the review has not been completed or the complainant remains dissatisfied with the outcome of the review.
(5) For the purpose of an investigation under this Act the Commissioner –
(a) may require any Minister, officer or employee of the authority concerned or any other person who in the Commissioner’s opinion is able to provide information or produce records relevant to the investigation to do so;
(b) shall have the same powers as the Court in respect of the attendance and examination of witnesses (including the administration of oaths and the examination of witnesses abroad) and in respect of the production of documents;
(c) may examine any record to which this Part applies, including any record containing information which is or may be exempt;
(d) shall take all reasonable precautions to avoid the disclosure of information which is or may be exempt but may disclose to the appropriate authority any information, including exempt information, which in the Commissioner’s opinion indicates the commission of an offence or significant misconduct on the part of any person;
(e) may receive and consider any record or information, whether or not it would be admissible in a court of law; and
(f) may enter any premises occupied by a public authority and examine or remove any record or material relevant to the investigation.
(6) No obligation to maintain secrecy or other restriction upon the disclosure of information, whether imposed by an enactment or by any rule of law or otherwise, shall preclude a person from supplying information to the Commissioner for the purpose of an investigation under this section.
(7) The Crown shall not be entitled, in relation to any investigation by the Commissioner, to any privilege in respect of the production of records or the giving of evidence as is allowed by law in legal proceedings; but anything said or any information supplied in any record produced by a person in the course of such an investigation shall be privileged in the same manner as if it were said or supplied in proceedings in court.

Enforcement

7. (1) On the completion of an investigation the Commissioner may make an order requiring an authority to take such steps as the Commissioner deems necessary to comply with the requirements of this Part within such period of time as the order may specify.
(2) If any person without lawful excuse –
(a) fails to comply with an order of the Commissioner; or
(b) obstructs the Commissioner in the performance of his or her functions; or
(c) is guilty of any act or omission in relation to an investigation by the Commissioner which, if that investigation were a proceeding in court, would constitute contempt of court,
the Commissioner may certify the offence to a court which may inquire into the matter and, after hearing any witness who may be produced against or on behalf of the person charged with the offence, and after hearing any statement that may be offered in defence, deal with the person in any manner in which the court could deal with the person if he or she had committed the same offence in relation to the court.
(3) Any person who destroys a record –
(a) which at the time it was destroyed was the subject of a request, or of a complaint to the Information Commissioner, under this Act; and does so
(b) intending to prevent its disclosure in accordance with the requirements of this Act or in circumstances in which it was foreseeable that such disclosure would thereby be prevented
commits an offence and shall be liable on summary conviction to a fine not exceeding the statutory maximum or, on conviction on indictment, to imprisonment for a term not exceeding six months or a fine or both unless the person can prove that at the time of the alleged offence he or she did not know and had no reasonable cause to believe that the record was a record to which this subsection applies.

PART II
PROTECTION FOR PERSONS MAKING
PUBLIC INTEREST DISCLOSURES

Disclosure in the public interest

8. (1) Subject to the following provisions of this section no person shall be penalised in relation to any employment, profession, voluntary work, contract, membership of an organisation or the holding of any office as a result of having made or proposed to make a disclosure of information which he or she obtained in confidence in the course of that activity if the disclosure is one which, because of the public interest, a court would not restrain.
(2) Subject to subsection (3) the provisions of subsection (1) shall only apply where the person –
(a) believes on reasonable grounds that the information is accurate; and
(b) has not made or proposed to make the disclosure for the purpose of obtaining payment or personal gain; and
(c) has –
(i) previously drawn the matter which the information concerns to the attention of the individual to whom the obligation of confidence is owed, or to a person designated by that individual for that purpose, and
(ii) allowed a reasonable period of time for appropriate action to be taken by that individual, but no such action has been taken;
unless it was not reasonable to do so because of the urgency of the matter or because another individual had previously done so in relation to the same matter and had been penalised as result.
(3) For the purposes of subsection (1) a disclosure which is made to the police or to an appropriate regulatory body in accordance with subsection (2) shall be deemed to be made in the public interest.
(4) For the purpose of this section a person is penalised if he or she is dismissed, discriminated against, made the subject of any reprisal or other form of adverse treatment or is denied any appointment, promotion or advantage that otherwise would have been provided; and the imposition of any such penalty in contravention of this section shall be actionable as a tort or, in Scotland, as a delict.
(5) Any term of any settlement arising from a claim under this section, insofar as it purports to impose an obligation of confidentiality on any party to the settlement in respect of information which is not inaccurate and which was or was proposed to be disclosed, shall be unenforceable.
(6) In any proceedings for an offence for contravention of any statutory prohibition or restriction on the disclosure of information it shall be a defence to show that in the circumstances the disclosure was in the public interest, provided that where the offence is alleged to have been committed by a Crown servant or government contractor and involves the disclosure of information obtained by him in his position as such, the defendant had before making the disclosure complied with the provisions of subsection (2).

PART III
DATA PROTECTION

European Data Protection Directive

9. [To come]

PART IV
GENERAL

Regulations

10. (1) The Secretary of State may by regulations make further provision for –
(a) the manner in which applications under this Act are to be made;
(b) the form in which information requested under this Act is to be supplied;
(c) the making of applications for personal information by representatives of the individual to whom the information relates;
(d) for the measures which public authorities shall take in order to assist persons in exercising their rights under this Act;
(e) the measures which public authorities shall take to ensure that adequate records are created and maintained by public authorities;
(f) for the procedures that should be followed by a complainant in asking an authority to review any decision or failure to act before a complaint may be made to the Information Commissioner;
(g) the charges which may be made for the provision of information for commercial purposes;
(h) a public authority to consult with a third party before giving access to information obtained by it from that party;
(i) requests for personal information other than information consisting of “data” within the meaning of section 1(2) of the Data Protection Act which are made under this Act by the subject of the information to be deemed to be made under the Data Protection Act; and for any consequential amendments to that Act;
(j) procedures requiring a public authority to ensure that personal information is accurate and otherwise complies with the Data Protection Principles;
(k) compensation to be sought by an individual who has suffered damage as a result of the holding of inaccurate information about his or her personal affairs by a public authority;
(l) the procedure to be followed by the Information Commissioner in carrying out an investigation;
(m) the records that public authorities shall be required to keep and the information that they shall be required to supply to the Secretary of State relating to the operation of this Act;
(n) the the salary and expenses of the Information Commissioner;
(o) the amendment of the Employment Rights Act 1996 in order to confer jurisdiction on an industrial tribunal to adjudicate on a claim by an employee that he or she had been penalised in contravention of section 8(1) above.
(2) The power to make regulations under this section shall be exercisable by statutory instrument; and no such statutory instrument shall be made unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.

Interpretation

11. (1) In this Act, “official record” means a record, in any form, held by a public authority in connection with its functions as such; and a record is so held if it is in the possession, custody or power of a public authority whether or not it was –
(a) created by that authority; or
(b) created before the commencement of this Act, but during the first year after that date a public authority shall not be required to give access to a record which was created more than 3 years before that date.
(2) In this Act, “public authority” means –
(a) a government department or executive agency;
(b) any other authority or body subject to examination by the Comptroller and Auditor General by virtue of section 6 of the National Audit Act 1983;
(c) any other body in relation to any function which it exercises on behalf of the Crown;
(d) a health service body, within the meaning of section 2(4) of the Health Commissioners Act 1993;
(e) a local authority;
(f) any body which is wholly or partly constituted by appointment made by Her Majesty or a Minister of the Crown or by a public authority.
(g) any body which is –
(i) established by virtue of Her Majesty’s prerogative or by an Act of Parliament or an Order in Council or an Order made under an Act of Parliament or which is established in any other way by a Minister of the Crown or by a government department or public authority; and which
(ii) receives at least half of its revenues directly from money provided by Parliament or from a levy authorised by an enactment or a fee or charge of any other description so authorised or from more than one of those sources; or
(h) any other body providing services, facilities or goods to a public authority (other than under a contract of employment) in relation to those services, facilities or goods;
(i) [specified privatised utilities]
( ) [Note: part of the definition in this clause may be replaced by a provision referring to any body which is subject to judicial review]
(3) In this Act “the Data Protection Principles” are the principles set out in Part I of Schedule I to the Data Protection Act 1984, and references in that Act to “personal data” shall, for the purpose of this Act, be deemed to include information relating to a living individual held by a public authority in any recorded form.

Short title, commencement, etc

12. (1) This Act shall be known as the Freedom of Information Act 1997.
(2) This Act shall come into force on 1 January 1998.
(3) This Act extends to Northern Ireland.
(4) This Act binds the Crown.

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