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Letter to Dr David Clark MP, Chancellor of the Duchy of Lancaster, about the Freedom of Information White Paper

20 June 1997

Dear David,

I am writing jointly on behalf of the Campaign and a number of our supporting and observer organisations (and will be making this letter public).

We are writing first to let you know of all our organisations’ strong support for Freedom of Information (FOI) legislation, which we regard as fundamental to the proper functioning of our democracy and essential to anyone seeking to bring about change. While we regret that legislation is not being introduced in the current Parliamentary session we welcome the high priority you have given to it and the tight timetable you have set for the publication of a white paper and draft bill. We also welcome the indications you have given that the intervening time will be used to ensure that the legislation is made as effective as possible. We recognise that the timing of future legislation is not in the hands of any one minister, but hope the government will make clear that the bill will be introduced in the second parliamentary session. There would be widespread dismay were the legislation not to feature in the next Queen’s speech.

An effective FOI Act will mean changes to the way government operates that may be uncomfortable. Concern about such changes may be reflected in pressure for exemptions, charges or procedures that go beyond those strictly necessary and whose cumulative effect on the legislation may be substantial. We hope that ministers will take the larger view and ensure that such concerns are not permitted to undermine the objectives of enhanced accountability, greater public involvement in decision-making and – as the Prime Minister explained at our annual Awards in March 1996 – a restored relationship of trust between government and the public.

The process leading to the introduction of the legislation should be as full and open as possible – objectives you have indicated are your own priorities too. We will be writing to you later with more specific proposals, but at this stage would like to make just one specific, but potentially far reaching, suggestion about this process itself.

It is normal for departments to make public the responses they receive to consultation papers from outside bodies, except where confidentiality has been specifically requested. In this case, however, we suggest that the openness should go further and extend to the comments received from Whitehall departments and other public bodies themselves, including those made both before and after the publication of the white paper and draft bill. Whitehall’s input to such proposals is of course not normally available to the public.

Making it available would have a number of benefits. First, it would emphasize the importance the government attaches to openness in developing its policies. In this area in particular this would be seen as an important symbol of a new approach. Second, it would demonstrate that the government was not waiting for the introduction of FOI legislation but was building openness into its procedures from the outset. Third, it would provide a uniquely well-informed understanding of the basis for the government’s specific proposals on FOI, and the reasoning that had led to them. Fourth, it would provide a practical exercise in the disclosure of internal discussion, which could subsequently be built upon. Without arguing for unrestricted access to internal discussion and advice we believe that there is scope for much greater disclosure in this area than has previously been recognised. We hope this proposal will set a working precedent for a more open approach which will subsequently be reflected in the legislation itself.

In practice, this approach would help to ensure that the case for any restrictions on the public’s rights to information have been properly and openly argued and are accepted as justified by the public. An FOI Act will inevitably contain numerous exemptions, but the case for some of these may not be self-evident. If it is thought that certain restrictions have been permitted as a result of special pleading by departments which, unlike other interested parties, can argue their case in secret, the credibility of the legislation will be damaged. (An example of this can be found in the Open Government code of practice, where in response to pressure from departments concerned certain food and safety monitoring data is wholly excluded from access, regardless of the public interest in disclosure, and indeed is accorded a higher degree of protection than information that may be harmful to national security or defence.) On the other hand, if departments make the case for particular restrictions openly, public confidence in the legislation is more likely to be retained. Exposing individual departments’ views will not undermine collective responsibility, since the government at this stage will not have reached a collective view. But it will allow the nature and source of any particular concerns within government to be seen and debated, so that any final decision is more likely to be seen as justified in terms of the balance of argument.

Such an exercise would not be entirely unprecedented. Earlier this year the Home Office made available the responses to its consultation-paper on the EU data protection directive. The respondents, which had all previously given permission for their comments to be made public, included Whitehall departments, such as the MOD, MAFF, DoE, DSS, CPS, the Cabinet Office, Scotland Yard’s National Identification Service, the Prison Service and a number of Home Office directorates.

We hope that you will be able to build on that small but significant step by ensuring that the development of the government’s Freedom of Information legislation is an exemplary exercise in openness. This would also convey to the public and to the government machinery itself that the legislation is intended to bring about fundamental changes to the way government operates.

Yours sincerely,

Maurice Frankel
Director

Co-signed by:

Arnold Simanowitz, Chief Executive
Action for Victims of Medical Accidents

Malcolm Smart, Acting Executive Director
Article 19

Jonathan Baume, General Secretary
Association of First Division Civil Servants

Sir Neville Purvis KCB, Director General
British Safety Council

Roger Bolton, General Secretary
Broadcasting, Entertainment, Cinematograph & Theatre Union

Granville Williams, Director
Campaign for Press & Broadcasting Freedom

Andrew Puddephatt, Director
Charter 88

Christopher Underwood, General Secretary
Chartered Institute of Journalists

Tim Owen, Chairman
Coalition for Public Information

Marianne Rigge, Director
College of Health

Sheila McKechnie, Director
Consumers’ Association

Mike Eastwood, Director
Directory of Social Change

Naomi Eisenstadt, Chief Executive
Family Service Units

Stephen Alambritis, Head of Parliamentary Affairs
Federation of Small Businesses

Ken Cameron, General Secretary
Fire Brigades Union

Sue Dibb, Co-Director
Food Commission

Uta Bellion, Policy Director
Friends of the Earth

Kevin Dunion, Director
Friends of the Earth Scotland

Doug Melloy, President
Guild of Editors

Elspeth Hyams, Director
Institute of Information Scientists

John Wadham, Director
Liberty

Sherry Jespersen, Director of Communications
Library Association

Revd John Kennedy, Secretary for Political Affairs
Methodist Church

Ruth Evans, Director
National Consumer Council

Jacob Ecclestone, Deputy General Secretary
National Union of Journalists

Nancy Tait MBE, Management Committee Member
Occupational and Environmental Diseases Association

Peter Beaumont, Director
Pesticides Trust

Stephen Shaw, Director
Prison Reform Trust

Guy Dehn, Director
Public Concern at Work

Nik Nicol, Director of Policy & Research
Public Law Project

Dr Maurice Brook, Hon Vice Chairman
Rescare

Dr Derek Manson-Smith, Co-Convenor
Scottish Campaign for Freedom of Information

Charles Medawar, Director
Social Audit

Revd Peter Brain, Secretary for Church and Society
United Reformed Church

Rodney Bickerstaffe, General Secretary
Unison

Barry Coates, Director
World Development Movement

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