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Proposals for a Freedom of Information Act

Freedom of Information Bill

Draft Instructions to Parliamentary Counsel to prepare a Bill

1 May 1997

1. Introduction

The objects of the proposed Act are to:

a. establish a right of access by the public to records held by public authorities (including government departments), subject to specified exemptions;

b. establish an Information Commissioner who will investigate complaints and make orders enforcing the above provisions;

c. provide protection against dismissal or other adverse treatment for those who disclose confidential information in circumstances that the courts would accept were justified in the public interest, providing they have complied with certain requirements

The new Act will replace the existing non-statutory arrangements for access to official information provided under the Code of Practice on Access to Government Information and the Code of Practice on Openness in the NHS. It will also encompass existing statutory access provisions, such as the Environmental Information Regulations 1992, which should be repealed.

In order to reduce the demands on Parliamentary time it is intended that certain procedural matters connected with the Act should be dealt with by way of Regulations (see section 28 below). Only a preliminary view of what could be handled by secondary legislation is here expressed, and a number of the matters which are currently proposed to be covered by primary legislation may be transferred to Regulations if necessary. These might include the provisions relating to the materials to be made available by authorities [section 13], internal review [section 18] and some of the provision relating to protection of individuals making public interest disclosures [section 27].

The proposed Act draws in part on freedom of information laws overseas, and it may be relevant to refer to the Australian Commonwealth Freedom of Information Act 1982, Canada’s Access to Information Act 1982 and New Zealand’s Official Information Act 1982. In addition more recent legislation introduced by some Canadian provinces and Australian states, which includes Victoria, Freedom of Information Act 1982; New South Wales, Freedom of Information Act 1989; Tasmania, Freedom of Information Act 1989; Queensland, Freedom of Information Act 1992; Western Australia, Freedom of Information Act 1992 and Manitoba, Freedom of Information Act 1985; Ontario, Freedom of Information and Protection of Privacy Act; British Columbia, Freedom of Information and Protection of Privacy Act 1992. In the UK, Mark Fisher MP introduced a private member’s bill in 1993, the Right to Know Bill, which completed its committee stage before falling through lack of time.

It is likely that new legislation will be required in the present Parliamentary session to implement the European Data Protection Directive which is required to be implemented by October 1998 (Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data). Both the Directive and the proposed Freedom of Information Bill in part cover similar ground. Both would create new rights of access by individuals to personal files relating to their affairs held in manual form by public authorities. An ideal option might be to combine both in a single piece of legislation, and this may be the most effective way of avoiding (a) duplication of provision and (b) conflict, between them.

The present Instructions do not extend to the drafting of measures necessary to implement the Directive. However, whether a single combined bill, or two independent bills are produced, it contains at section 25 below proposals as to how the potential overlap should be dealt with.

2. Purposes

The purposes of the Act should be specified and it is intended that they should guide the Information Commissioner in interpreting the Act and the application of its exemptions. Similar legislation overseas generally includes such a provision (eg section 3 of the Australian Freedom of Information Act 1982) but the most relevant of overseas precedents is section 4 of the New Zealand Official Information Act 1982.

It is intended that the specified purposes should be to:

a. 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. enable individuals to see information held by public authorities about their affairs and to ensure that it is accurate and held in accordance with the Data Protection Principles

c. ensure that persons (natural and legal) are given reasons for decisions taken by public authorities which affect them.

d. ensure that guidelines used by public authorities in making decisions affecting persons are publicly available.

e. facilitate the disclosure of information promptly and at the lowest reasonable cost.

It should be a requirement that the Act be interpreted so as to further the above purposes.

The reference in (a) to the “progressive” extension of the public’s rights to information is based on section 4(a) of the New Zealand Official Information Act, and is intended to recognise that the objectives of the Act will be achieved over a period of time, and that the level of disclosure that is required in the public interest may also evolve.

The reference in (a) to “the public interest” may appear superfluous in isolation. However the “public interest” is to be referred to in at least two subsequent provisions of the Act: (i) in the definition of exempt information and (ii) in the provision that fees be waived where disclosure is in the public interest. In both cases, it is intended that the public interest be interpreted in light of the explicit public interest purposes set out at paragraph (a) above.

The purpose set out at (b) refers to the Data Protection Principles, set out in Schedule 1 to the Data Protection Act 1984 (which apply to individuals, not legal persons). Some modification to these may be introduced by the proposed legislation to implement the Data Protection Directive.

The purpose set out at (c) corresponds to the provision in paragraph 3(iii) of Part I of the Code of Practice on Access to Government Information.

The purpose at (d) corresponds to paragraph 3(ii) of the Code of Practice on Access to Government Information, which itself draws on equivalent provisions in the Australian Freedom of Information Act 1982, (section 9(1)) and the New Zealand Official Information Act 1982, (section 22).

The purpose set out at (e) corresponds to section 3(2) of the Australian Freedom of Information Act 1982.

3. Right of access

The right of access should be expressed as a right to records held by public authorities exercisable by any person, natural or legal. It is not intended to discriminate between UK or EU citizens and others.

The purpose for which the applicant seeks access should be irrelevant, and it may be desirable to make this explicit. There is, for example, no intention to prevent access where it is sought for the purpose of legal proceedings, although an exemption allowing information contained in records to be withheld where disclosure might prejudice proceedings is to be provided.

Requests should identify the record to which access is sought or provide sufficient description of the information sought to enable the authority to identify relevant records. Any such provision should take account of the fact that applicants will not normally be able to identify what specific records an authority holds. A request which seeks access to all records relating to a particular subject should be acceptable, provided the volume of records is not such as to cause the substantial and unreasonable interference with the authority’s work referred to in exemption (11) below.

Nothing in the Act is intended to prevent the giving of access to records or information other than under the Act where an authority is required, or has the discretion, to do so.

4. Records held by an authority

It is intended that the Act should apply to records held by or on behalf of a public authority or which are within the power of the authority (cf Order 24, Rule 2 of the Rules of the Supreme Court) insofar as the records are held in connection with its functions as a public authority.

Records held other than in connection with such functions (for example, a minister’s constituency correspondence, should it be held in his private office) should not be covered.

Records not created by the authority but held by it in connection with its functions are to be subject to the Act. Where a requested record was created by another authority which is also subject to the Act, the Regulations should provide that the request may with the agreement of the creating authority, be transferred to it.

5. Definition of “record”

The right of access should apply to any recorded information, regardless of its form. Though these may not need to be specified, it should be capable of covering records that are typed, printed, hand-written, in the form of audio or video cassettes, microfiche, film, photographs or machine-readable, and any information held in electronic form whether on computer disk or tape or in the memory of a computer. The definition should not be restricted to text, but should encompass drawings, diagrams, plans, maps, sounds, images and data held in digital form (eg the data on a “black box” flight recorder). Ideally the definition of “record” should be set out in terms broad enough to cope with future technological developments relating to the form of data storage.

An authority should not be required to create a record in order to satisfy a request where no such record previously existed. However, an authority should not be able to refuse to give access to information which can be extracted from existing electronic records by use of a programme which is already available to and used by the authority for this purpose, and where it is practicable for the authority to do so.

6. Retrospection

The right of access is to apply to records which were created before the Act’s commencement, subject to two qualifications:

a. in the first year after commencement, only records created in the preceding three years are to be accessible, except where the records relate to the personal affairs of the applicant when they are to be available regardless of their date of creation;

b. access to pre-commencement records may be refused where the difficulty in identifying and retrieving the records is such as to interfere substantially and unreasonably with the work of the authority. (A general exemption to this effect is set out at paragraph 11 of section 12 below.)

7. Public authorities

It is intended that the “public authorities” to which the Act should apply should cover the whole of the public sector, including:

a. ministers and government departments

b. executive agencies

c. non-departmental public bodies including advisory bodies;

d. bodies established by the Royal prerogative

e. publicly owned corporations

f. NHS bodies

g. local authorities

h. any body which is established by any of the above

i. any body to which any of the above makes one or more appointments.

In addition it is proposed to include:

j. records held by any body providing services to a public authority under contract, in relation to those services (this is intended to include but not be limited to services such as consultancy, security, data processing, etc)

k. records held by certain of the utilities, such as gas, electricity, water, and railways in relation to provision of the relevant goods or services. The precise scope of this provision has not yet been determined.

Where the public authorities referred to above can be listed individually, or by reference to clearly defined classes, it may be helpful to do so in order to provide certainty. However, a definition which relied solely on schedule would involve the problems which have arisen in relation to the bodies subject to the jurisdiction of the Parliamentary Ombudsman and listed in Schedule 2 to the Parliamentary Commissioner Act 1967. Changes in government structure, the creation of new bodies or oversights, have led to the need for constant updating by means of statutory instrument. The proposed definition will cover a substantially greater number of bodies than those which are subject to the 1967 Act and the problems of ensuring that any schedule is comprehensive and up to date are likely to be correspondingly greater. It may therefore be that a more general definition setting out the classes of bodies to be covered, may be preferable either as an alternative to a schedule or in combination with one. One approach may be to refer in the definition to bodies which are subject to judicial review, though separate definitions in relation to classes (j) and (k) would still be required. It may be that use could be made of existing statutory definitions, such as the bodies subject to examination by the Comptroller and Auditor General by virtue of section 7 of the National Audit Act 1983 or those which are health service bodies within the meaning of section 2(4) of the Health Commissioners Act 1993.

8. Time scale for giving access

Access to a requested record should normally be given (a) as soon as is practicable, and in any case (b) within 20 working days from the date on which the request was received by the authority unless (c) the record contains information which has been obtained from a third party, in which case 35 working days should be allowed. (It is proposed that the Regulations should require an authority to consult a third party where it is considering giving access to a record containing information which has been obtained from that party, in order to permit representations to be made as to whether any of the information may be exempt.)

Where a requested record has not been provided within the specified period, it should be deemed to have been refused.

9. Manner in which records are to be made available

It is intended that access to should be given, at the request of the applicant, in either or both of the following means;

1. by supplying to the applicant a copy of the record in the form in which it is held by the authority, unless the applicant requests that it be made available in another form, including electronic form, and it is practicable for the authority to do so.

2. by permitting the applicant to inspect the record on the authority’s premises, where this is practicable. “Inspection” will generally refer to paper records, but equivalent facilities should be provided in relation to non-paper records, eg by permitting an applicant to listen to an audio tape or view a microfiche provided that (a) any equipment necessary for giving access in this manner (eg a tape recorder, microfiche reader) is already held by the authority, and (b) any exempt information can be excluded.

The reference in (1) to “electronic form” is intended to acknowledge and encourage the increasing use of electronic media for the provision of government information, in line with the approach described in the Government.Direct green paper of November 1996 (Cm 3438). It is envisaged that applicants might ask for a copy of a computer disk containing specified information or for a print-out of that data or for the information to be made available by e-mail or by being published on an Internet web site. Applicants may may also ask that information be transcribed from recorded to written form, or made available in a form that is accessible to an individual with impaired sight or translated into the language of a non-English speaking applicant. The circumstances in which such transcribing or translating should be undertaken, and the additional charges if any which may be made for doing so, should be dealt with under Regulations.

10. Charges

A public authority should be entitled to make a reasonable charge which should not exceed the costs of making and supplying any copies of records.

In addition, an authority should be entitled to make a reasonable hourly charge to cover the time spent in compiling records in response to a request, but it is proposed that (in line with the existing practice on a number of government departments under the Code of Practice on Access to Government Information) no such charge may be made for the first five hours of time so spent. A maximum hourly charge is to be specified, but until a decision on the amount has been taken it should be referred to as “£X”.

Authorities should be required to waive fees where the disclosure of the requested information is in the public interest. It is not proposed to elaborate on the meaning of public interest, though it is intended that the the term should be interpreted in part by reference to the public interest purposes of the Act set out at section 2.

Where records are sought for a commercial purpose, authorities should have the power to make additional charges, so as to recover the full costs of handling the request. Details of such charges are to be specified in Regulations. By “commercial purposes” it is intended to refer to such matters as a business seeking information in order to improve its prospects of obtaining a contract let by a public authority, or a license from a regulatory body, or influence the shape of a policy which may affect its commercial affairs, or for the purpose of supplying it to others as part of a profit-making service.

The definition of a “commercial purpose” should not extend to those seeking records for the purposes of journalism, broadcasting or other forms of publication which are available to the general public, notwithstanding that the publisher or broadcaster may be a commercial organisation. [It may be helpful to refer to Regulation 8(4) and (5) of The Control of Pesticides (Amendment) Regulations 1997 in which restrictions are imposed on the “commercial use” of certain information, but the definition of such use does not include the publication of the information in a book or journal.]

11. Exclusion of exempt information

There should be no obligation to give access to a record insofar as it contains exempt information. However, an authority should not be entitled to withhold the whole of a record where only a part of it consists of exempt information. Access should normally be given to a copy of the record from which the exempt information has been deleted.

The drafting of this provision should be broad enough to encompass the deletion of exempt information from a record held in any form, including non-paper records.

Where exempt information has been withheld the authority should be required to inform the applicant that this has been done, specifying the particular grounds of exemption which have been relied on, the reasons for considering that they apply to the information in question, and notifying the applicant of the procedure for challenging such decisions by internal review and subsequent complaint to the Information Commissioner.

12. Exemptions

The grounds on which authorities are entitled to withhold information are set out in the exemptions. It is intended that these all be discretionary, that is, they would permit the authority to withhold information but do not prohibit disclosure.

It is intended that in each case information should be exempt only if it meets two independent tests, that is that its disclosure would:

a. be likely to have one of the damaging effects specified in paragraphs (1) to (11) below, and

b. be contrary to the public interest.

In considering whether a disclosure is likely to be contrary to the public interest, regard should be had both to the case law (and in particular, to the disclosure of wrongdoing etc under the so-called ‘public interest defence’ to an action for breach of confidence) and to the reference to the public interest in the purposes of the Act.

The effects referred to in (a) are as follows:

1. Defence or international relations

Damage to the defence or international relations of the United Kingdom;

2. Security and intelligence

Damage to the lawful activities of the security or intelligence services

3. Law enforcement

Impeding the prevention, investigation or detection of crime or the apprehension or prosecution of offenders or the assessment or collection of any tax or duty; or facilitating an escape from legal custody; or prejudicing the fairness of legal proceedings; or endangering the safety or life of any person or the safety of a rare or endangered species.

4. Personal privacy

The unwarranted invasion of privacy of an individual other than the applicant or an individual on whose behalf, or with whose consent, an application has with proper authority been made.

(This exemption should provide that its terms are not breached by a disclosure relating to an officer or employee of the authority acting in his or her capacity as such.)

5. Commercial confidentiality

By disclosing confidential information –

i. relating to the authority, or

ii. supplied to or obtained by the authority from a third party

causing unreasonable damage to the competitive or negotiating position of that authority or party.

The exemption should contain a rider to the effect that in considering the public interest in relation to the disclosure of 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 significant 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

6. The economy

Damage to the economy by the premature release of the proposed introduction, abolition or variation of any tax, duty, interest rate or instrument of economic management

7. Negotiations

Damage to the position of the authority in negotiations relating to the pay or conditions of employment of its employees by revealing information compiled by it for the purpose of those negotiations.

8. Authority’s ability to obtain information

Damage to the work of the authority by impairing its ability to obtain similar information in future. However, this exemption should be subject to a proviso that it is only available where the information in question was supplied to the authority 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 do so in the expectation of receiving in return some grant, benefit, license, contract, concession or other advantage or of securing some change advantageous to itself in the policy or practice of the authority or in the framing of legislation

9. Decision-making

This exemption would protect 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 policy within the authority where its disclosure would either –

a. damage the authority’s ability to give adequate consideration to a matter concerning which no final decision has been taken and which remains subject to active consideration; or

b. had its possible disclosure been anticipated at the time that the advice etc was given, its candour would have been undermined to such a degree as to damage the quality of any resulting decision.

Note that it is implicit in (a) that advice, opinion or recommendation is protected only until a final decision has been taken or until the matter has ceased to be under active consideration.

Consideration of whether the damage referred to in (b) would have been likely to have occurred must be based on the likely effect of anticipating that the particular advice, opinion or recommendation in question might be disclosed not at the time that it was given (as such disclosure is likely to be excluded under (a)) but after any final decision has been taken.

In addition, the following categories of information should be defined as falling outside the scope of this exemption:

i. factual information

ii. the analysis, interpretation or evaluation of or any projection based on factual information;

iii. expert advice on a scientific, technical, medical, financial, statistical, legal or other matter other than advice to which paragraph (10) below applies;

iv. information relating to the personal affairs of an individual;

v. guidelines used in making decisions affecting persons [see section 13 below] or the reasons for any such decisions.

10. Legal advice

Damage to the authority’s position in any actual or contemplated legal proceedings caused by revealing the legal advice which it received in relation to such proceedings.

Note that it is not intended that all legal advice received by the authority should be protected.

11. Workload

Cause substantial and unreasonable interference to the work of the authority as a result of requiring it to identify and retrieve a substantial volume of records.

This exemption should only be available where, before refusing a request on these grounds, the authority has taken reasonable steps to assist the applicant to reformulate the request so as to avoid causing such interference to its work.

13. Materials to be made available by authorities

It is proposed that a public authority be required to make available four types of material, so long as to do so does not involve the disclosure of exempt information. These are (i) a guide to assist users of the Act (ii) a guide to the general classes of records held by the authority (iii) a register of records previously disclosed by the authority under the Act, and copies of those records, and (iv) certain internal guidance materials used by it. (Items (i) and (iv) are already produced by government departments and other bodies subject to the Code of Practice on Access to Government Information; it is envisaged that (ii) would be of a general nature only; and that (iii) would be maintained as part of the monitoring of the Act that authorities would in any case be expected to perform.)

All four categories are to be available for inspection free of charge at the authority’s premises and copies should be supplied on request, subject to recovery of copying and postage costs. It should be provided that, where practicable, such materials should also be made available on-line electronically. The intention is that where possible they should be accessible on the Internet, in line with the current practice of many government departments and the Government.Direct green paper proposals.

i. A Guide to assist users of the Act

Each authority should be required to make available a guide containing such information as may be reasonably necessary to assist persons wishing to exercise any right under this Act. In the interests of brevity, it may be preferable for the contents of this guide to be specified in Regulations. [It should, however, include: (a) a summary of the rights to obtain records, correct inaccurate personal information and challenge unfavourable decisions under the Act (b) a description of the classes of information and facilities (eg to inspect records, to consult indexes, etc.) which authorities are required to make available under the Act (c) the name and address to which requests for records, or for assistance, should be addressed (d) details of the procedure to be followed in seeking to challenge unfavourable decisions (e) details of the charging arrangements that may apply under the Act.]

ii. A guide to the classes of records held

Each authority should publish a guide sufficient to enable persons wishing to apply for records under the Act to identify:

the classes of records held by it

the subjects to which they relate (it is not intended that (a) and (b) should amount to a requirement to identify individual files held by the authority), and

the location of any indexes to those records held by the authority. However it is not intended that authorities be required to compile indexes where these are not already available to it.

The authority should also be required to provide facilities to enable the indexes referred to in (c) to be consulted by any person, provided that this can be done without substantial and unreasonable interference to the normal activities of the authority and provided the indexes can be made available without revealing exempt information. Indexes should not be withheld on the grounds that they contain exempt information where it is practicable to bar access to the exempt information (eg by denying access to certain data base fields on an electronic index).

iii. Register of disclosed records

Each authority should be required to maintain (a) a register containing copies of records disclosed by it under this Act other than records relating to the personal affairs of the applicant (which will generally be exempt on privacy grounds) and (b) an index to that register.

iv. Internal guidance materials

The intention is that each authority should make publicly available any internal materials used by it which consist of guidance, rules, interpretation, precedents, statements of objectives, policy or practice relating to the manner in which it carries out any function affecting the public or businesses. There should be an index to the internal materials so available.

14. Duty to give reasons

Public authorities are to be subject to a duty to give reasons to individuals and bodies for decisions taken in relation to their affairs.

15. Duty to assist

A public authority should be under a duty to provide reasonable assistance to any person seeking to exercise any right under this Act.

This general duty is in addition to the specific duties referred to elsewhere, including (a) the duty to publish a guide to assist users of the Act [section 13] and (b) the duty to assist an applicant to reformulate a request which has been turned down on the grounds that it would involve substantial and unreasonable interference to the work of the authority [section 12, paragraph (11)].

16. Duty to preserve records

A public authority should be under a duty (a) to create and preserve such records as are necessary to document adequately its policies, decisions, procedures and transactions and (b) to ensure that records in its custody (including those held in electronic form) are maintained in good order and condition.

17. Offence of destroying a requested record

It is proposed to create one offence, committed by any person who destroys a record which (a) at the time he did so he knew to be a record which was the subject of a request under the Act, or (b) was the subject of a complaint to the Information Commissioner and (c) was destroyed with the intention or foreseeable result of preventing it from being disclosed in accordance with the requirements of the Act. It should not be an offence to destroy a copy of the record where the original, or other copies, remain available to the authority.

It would be a defence to prove that at the time of the alleged offence the accused did not know and had no reasonable cause to believe that the record was a record which was the subject of a request or of a complaint to the Information Commissioner, or that no other copy of the record existed.

It is proposed that the penalty should be, on summary conviction, a fine not exceeding the statutory maximum or, on indictment, to a term of imprisonment not exceeding six months or a fine or both.

This is the only offence proposed to be created under this Act. Any other act of obstruction would be dealt with by the Commissioner, as proposed at section 22 below, and could result in action for contempt of court.

18. Internal review

Before making a complaint to the Information Commissioner –

an aggrieved applicant, or

a third party who objects to a proposed disclosure of information relating to their affairs on the grounds that it contains exempt information

should be required to ask the authority itself to review the decision in question. Such internal review should be completed within a 15 working day period. Where it is not, or where the person remains aggrieved, he or she would be entitled to make a complaint to the Commissioner. It should be a requirement that the internal review is carried out by a person within the authority who is more senior than the person responsible for the initial decision which is the subject of review.

The Information Commissioner should have the discretion to accept a complaint which has not been the subject of internal review, where –

  • the original decision was taken at the most senior level of the authority (eg by a minister, in the case of a government department; or in the case of a local authority by the chief executive,etc) and there is no more senior person to whom the decision can reasonably be referred
  • the complaint is of unreasonable delay on the part of an authority which was acting obstructively, and requiring internal review would merely add to the delay
  • he sees fit to do so on other grounds.

19. Establishment of Information Commissioner

The office of the Information Commissioner is to be established. The Commissioner is to be appointed by Her Majesty by Letters Patent on an address presented to both Houses of Parliament. The motion for such an address shall be made 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 appointed by the Speaker of the House of Commons for that purpose. (Cf the procedure for appointing the Comptroller and Auditor General under section 1(1) of the National Audit Act 1983).

Provision for the removal of the Commissioner, similar to that laid down for the Parliamentary Ombudsman in section 1(3) of the Parliamentary Commissioner Act 1967, will be required. In addition equivalent arrangements to those laid down in the 1967 Act will be required for the salary and pension of the Commissioner, administrative provisions and expenses.

20. Functions of Commissioner

The duties of the Commissioner are to:

  • investigate complaints that a public authority has failed to comply with any of the preceding requirements. (The Commissioner has no function under the provisions protecting from dismissal or reprisal those who disclose confidential information in the public interest.)
  • undertake investigations on his own initiative, in the absence of a complaint
  • conduct investigations with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters concerned permit
  • perform his functions so as to further the purposes of the Act
  • arrange for the dissemination of such information about the operation of the Act as he thinks fit
  • if he thinks fit, advise any person in relation to any matter relating to the operation of the Act
  • make an annual report to each House of Parliament on the operation of his functions and from time to time make such other special report as he may think fit

21. Powers of the Commissioner

Certain of the Commissioner’s proposed powers are similar to those of the Parliamentary Ombudsman, as laid down in the PCA 1967, in respect of –

  • the power to compel ministers, public authorities and others to provide information or records relevant to an investigation [PCA, s 8(1)]. For the avoidance of doubt it may be helpful for the Act to make explicit that he may examine any relevant record including a record containing information which is or may be exempt under this Act.
  • the power to compel the attendance of witnesses, the giving of evidence under oath and the production of documents [PCA s 8(2)].
  • the power to obtain information notwithstanding any obligation to maintain secrecy or any statutory or other restriction on disclosure or any privilege that the Crown might enjoy in legal proceedings [PCA s 8(3)]

In addition, the Commissioner will require the power to –

  • receive and consider any record or information, whether or not it would be admissible in a court of law [cf the powers of the Canadian Information Commissioner under section 36(1)(c) of Canada’s Access to Information Act 1982]
  • be able to enter any premises occupied by a public authority and examine or remove any records or materials relevant to an investigation [cf sections 36(1)(d) and (f) of Canada’s Access to Information Act 1982]

The Commissioner should be under an obligation to take all reasonable precautions to avoid the disclosure of information which is or may be exempt, but he may disclose to the appropriate authority any information, including exempt information, which in his opinion indicates the commission of an offence or significant misconduct [eg a breach of the rules governing the conduct of civil servants or ministers] on the part of any person.

Anything said, or any information supplied in the course of an investigation by the Commissioner should be privileged as it would be were it said or supplied in proceedings in court.

Further detail concerning the procedures to be followed by the Commissioner in conducting an investigation may be be dealt with in Regulations.

22. Orders of the Commissioner

On completion of an investigation, the Commissioner should have the power to make an order requiring an authority to take such steps as he may deem necessary to comply with the requirements of the Act within a specified period.

The Commissioner’s orders would be binding. The Commissioner would be able to enforce an order by certifying any failure to comply by any person (including a minister, department or other public authority) to the court, which would deal with the matter as if it were a contempt of court. This procedure would also be followed in respect to any obstruction of an investigation by the Commissioner or any act or omission in relation to an investigation which, were it committed in relation to a proceeding in court would constitute contempt of court. [See sections 9(1) and (2) of the Parliamentary Commissioner Act 1967]

Note that the powers of the Commissioner to obtain information, to take evidence and to enforce his orders etc may be required not only in relation to ministers, departments and other public authorities but also in relation to third parties whose information, insofar as it is held by a public authority, may be the subject of a request under the Act.

It is intended that appeal against an order of the Commissioner, or the failure of the Commissioner to make an order, would be by way of judicial review on a point of law or on grounds of unreasonableness.

23. Annual Report

The Secretary of State should be required to make an annual report on the operation of the Act. Public authorities may be required by Regulations to keep records relating to their handling of requests under the Act and submit them to the Secretary of State.

24. Defamation, confidentiality, copyright

The Act should provide protection against (as appropriate) action for defamation, breach of confidence or infringement of copyright in the case of:

  • a person acting on behalf of the authority who discloses a record in accordance with the Act or in good faith in the belief that the disclosure was required by it. Were the authority to be at risk of action for defamation etc, there would be a strong disincentive to disclose, or even to compile, any record which might expose them to such action. However, a person who, having obtained the record, republishes it should not be entitled to any special protection in relation to defamation.
  • the author of any statement contained in a record disclosed in the above manner should be protected against any action in relation to that disclosure. The protection should apply to an individual employed by the authority, and to a third party in relation to a communication made by it to the authority. However, were the authority to publish the information other than as required by the Act such protection would not be available.

In addition, the reproduction of a record disclosed under the Act should not constitute breach of any copyright enjoyed by a public authority including Crown copyright.

25. Data Protection Directive

The present Instructions do not extend to the drafting of measures necessary to implement the European Data Protection Directive. However, whether a single combined bill, or two independent bills are produced, it is proposed that the following approach be adopted:

(a) Requests by individuals for access to personal records relating to themselves and held by a public authority should be deemed to have been made under Data Protection (DP) legislation.

The advantage of this approach is that it would bring all requests for personal information by the subject of the information together under a single set of provisions, enforced by the Data Protection Registrar. Complaints about any failure to provide access to such records would be made to the Registrar, not to the Information Commissioner.

This approach assumes that the new DP provisions are drafted broadly enough to cover all personal information held by a public authority. This would go beyond the scope of what is strictly required in order to comply with the Directive, which may apply only to personal information contained in a “structured set of personal data which are accessible according to specific criteria” [Article 2(c)]. Were the Directive to be implemented in this way, paragraph (b) of the proposed purposes of this Bill, which refers to the Data Protection Principles, would no longer be required.

If the DP provisions are more narrowly drafted, then requests for some personal information held by public authorities would be dealt with under this Bill. The Bill would then require its own provisions enabling individuals to enjoy some of associated rights found under the DPA, such as the right to have inaccurate personal information corrected.

It is proposed that any such rights under the FOI Bill should permit the amendment of inaccurate, misleading or out of date information or information which, in relation to the purpose for which it is held, is inadequate, irrelevant, or excessive.

Such a provision would correspond to the factors referred to in the 4th and 5th Data Protection Principles as set out in Schedule 1 of the DPA 1984, and may be implemented by Regulations.

Where an authority did not accept that the information was inaccurate, etc, the applicant could complain to the Commissioner. Where no such complaint was made, or where a difference over opinion rather than fact remained outstanding, the authority should be required:

to offer the individual the opportunity to produce a statement setting out his or her views in relation to the disputed information, and

prominently to incorporate any such statement in the record.

In addition, provision should be made to permit an individual who has suffered damage as a result of the inaccuracy of personal information contained in an official record, to apply for compensation. This may be done by an appropriate extension of the provisions of section 22 of the Data Protection Act, which provide for such compensation in relation to damage caused by inaccurate personal data held on computer.

(b) Requests for personal information about a person other than the applicant should be dealt with under the Freedom of Information Bill.

Release of information about a third party would depend on whether it was held to involve an invasion of that person’s privacy and fall within proposed exemption (4). In general it is likely that nearly all disclosures of personal information would be held to have such an effect (except where the information was already publicly available, or related to an individual acting in a public capacity). However, account would still need to be taken of whether disclosure was contrary to the public interest.

It would be beneficial if this exemption under the Freedom of Information Bill was drafted in terms which corresponded to the restriction on the disclosure of personal information under the proposed DP legislation. However, the public interest provision under the FOI legislation should be retained, regardless of whether a corresponding public interest provision appears under the DP legislation.

(c) The FOI Bill should confirm that a disclosure in accordance with its provisions does not contravene DP legislation.

Presently, under section 34(5) of the Data Protection Act 1984 a disclosure which is “required by or under any enactment, by any rule of law or by the order of a court” does not contravene that Act’s restrictions on the disclosure of personal data. As the 1984 Act may be amended or incorporated into a new DP Act, and the continued existence of this provision may not be guaranteed, it may be advisable to ensure that the proposed FOI Act contains a corresponding provision, confirming that a disclosure under its terms does not contravene the DP legislation or, indeed (as suggested below) other restrictions on disclosure.

26. Statutory restrictions

There are a considerable number of statutory restrictions which prohibit the disclosure of information by public authorities. These were set out in the ‘Open Government’ White Paper published in July 1993 (Cm 2290) at Annex B. Many of these are drafted in broad terms, applying to substantial classes of information, and do not depend on any test of whether the disclosure would be likely to cause actual harm to a commercial or other specific interest. It is intended that, with the exception of those restrictions applying to personal data, they should be overridden by the right of access under the proposed Freedom of Information Act. It may be helpful to refer to a similar provision in section 26 (4) of the Data Protection Act 1984 which, in relation to the right of ‘subject access’ created under s 21, states:

“Except as provided by this Part of this Act the subject access provisions shall apply notwithstanding any enactment or rule of law prohibiting or restricting the disclosure, or authorising the withholding, of information.”

An exception to the proposed override should be made where an existing statutory restriction prohibits the disclosure of personal data relating to an identifiable living individual.

Where such information would would also be exempt under the “invasion of privacy” exemption its disclosure should continue to be prohibited unless disclosure was held to be in the public interest in accordance with the public interest test set out at section 2 above. Before requiring a disclosure of such information on public interest grounds it should be a requirement that the Information Commissioner consult the Data Protection Registrar.

27. Protection of individuals making public interest disclosures

It is intended to provide protection against dismissal or other adverse treatment for employees and others who disclose confidential information in the public interest. The provisions broadly reflect the approach adopted in the Public Interest Disclosure Bill introduced as a private member’s bill in session 1995-96 by Don Touhig MP. The relevant provisions will not be subject to oversight by the Information Commissioner and will not be restricted to those working in the public sector. It may be appropriate for these provisions to be presented in a separate Part of the Bill.

This Part should provide that no person is to be penalised in relation to any employment, profession, voluntary work, contract, membership of an organisation or the holding of an office as a result of having made or proposed to make a disclosure of information which was

a. obtained in confidence in the course of that employment, profession, etc, if

b. the disclosure is one which, because of the public interest, a court would not restrain and if

c. the other requirements of this Part have been followed.

It is not intended that ‘public interest’ should be defined or qualified by the reference to public interest purposes of the the proposed FOI Bill.

The penalties against which protection is to be provided should include dismissal, reprisal or other form of adverse treatment, or the denial of any appointment, promotion or advantage that otherwise would have been provided.

The imposition of any such penalty in contravention of these provisions should be actionable as a tort or, in Scotland, as a delict. In the case of an employee who has suffered such a penalty, an alternative remedy should be provided before an industrial tribunal. The necessary extension to the jurisdiction of industrial tribunals may be made by amendments to the Employment Rights Act 1996 by way of Regulations.

In any settlement arising from a claim under these provisions, any term which 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 should be unenforceable. (This reflects the fact such disclosures are by definition disclosures which a court would hold ought not, in the public interest, to be restrained.)

To attract the proposed protection against adverse treatment, the person making or proposing to make the disclosure must:

a. believe on reasonable grounds that the information is accurate

b. not be acting for the purpose of obtaining payment or personal gain

c. have previously drawn the matter to the attention of the person to whom the obligation of confidentiality is owed or to a person designated by that person for the purpose (this would require that use be made of any formal complaints procedure intended to be used in such circumstances)

d. have allowed a reasonable period of time for appropriate action to be taken by that person, but found that no such action has been taken (unless it was not reasonable to allow such a period of time because of the urgency of the matter or because another individual who had previously drawn the same matter to the person’s attention had been penalised as a result and no appropriate action in relation to the matter had been taken.)

Certain disclosures may contravene various statutory prohibitions including the Official Secrets Act and those listed in, or introduced subsequent to, the ‘Open Government’ White Paper previously referred to. It is intended to create a defence for any person charged with an offence under any such provision, that in all the circumstances the disclosure was in the public interest. Where the offence is alleged to have been committed by a Crown servant or by a government contractor (whose position under the Official Secrets Act 1989 is similar to that of the Crown servant) and involves the disclosure of information obtained by that person as a result of his position as such, the defence should only be available if the defendant has before making the disclosure complied with the provisions set out in paragraphs (a) to (d) above. It is not intended that others, such as journalists, be under the obligation to raise the matter internally or otherwise comply with (a) to (d) before they may be entitled to a public interest defence (though such factors may already be considered by the court in considering whether a disclosure was in the public interest).

28. Regulations

It is proposed that the following matters arising under the first Part of the Bill be dealt with by way of Regulations:

  • the manner in which applications are to be made
  • the transfer of requests for a record held by the authority (including a government department) but created by another authority, also subject to the Act, to that authority, where the creating authority agrees
  • the transfer of requests for records not held by the authority to another authority where it appears that the request relates to the work of that authority
  • arrangements for applications for records containing personal information to be made by a representative of the individual to whom the information relates
  • further provision as to the form in which records are to be supplied, and the circumstances in which transcription or translation of records information may be required and charges may be made for doing so
  • the measures that shall be taken to ensure that adequate records are created and maintained [see section 16] by public authorities;
  • the charges which may be made for copying records and for giving access in general and in relation to requests made for commercial purposes
  • the power to vary charges
  • the steps which a public authority which is considering disclosing information relating to a third party shall take to consult with that party before reaching a final decision
  • the correction of information held by a public authority about an individual which is inaccurate or not held in compliance with the Data Protection Principles and the payment of compensation for damage suffered by the individual as a result;
  • the procedure to be followed by the Information Commissioner in (a) carrying out an investigation, in particular in relation to the notification of parties that an investigation is underway and the provision of adequate opportunity to make representations, and (b) notifying parties of the outcome of an investigation and of the terms of any resulting order which has been made
  • the records that public authorities shall be required to keep and forward to the Secretary of State relating to the discharge of their responsibilities under the Act.
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