The Campaign for Freedom of Information warmly welcomed the government’s proposals on freedom of information (FOI) published today (Your Right to Know, Cm 3818).
The Campaign’s director Maurice Frankel said: “The white paper goes further than we had thought any British government would be willing to go. It could lead to an outstanding freedom of information act that in many respects is better than most overseas FOI laws. Compared to many of these laws, the range of bodies covered in the new proposals is wider; the test the government would have to meet before it could withhold information is tougher; and the enforcement mechanism is as powerful but more accessible. This is a substantial reform that, for the first time, will give the British public a genuine right to know what its government is doing in its name.”
The Campaign particularly welcomed the fact that:
- under most exemptions, only information capable of causing “substantial damage” could be withheld. This is a more difficult test for the government to meet than applies under the American and other countries’ FOI laws. Most overseas exemptions refer to “damage” (or “harm” or “injury”) but do not require the damage to be “substantial”.
- the scope of the proposed Act would be impressively wide – it would even cover the privatised utilities, and private bodies working on contracted-out functions, as well as government departments, NHS bodies, quangos and local authorities [para 2.2].
- all records and information held will be accessible – the right of access applies to all existing records, regardless of how long ago they were compiled, to historical records not yet available under the Public Records Acts [paras 2.13-2.14], and even to information which was known to officials but had not been recorded in official files [para 2.7]
- the Act would be enforced by an Information Commissioner with legal enforcement powers. The Campaign welcomed the fact that the Commissioner would have the powers of a court to compel government to release information, but that complainants would not have to bear the potentially prohibitive costs of going to court to enforce their rights.
- some access to civil service advice and internal discussion will be possible, where disclosure does not cause harm. Although the harm test for the exemption for advice is easier for the government to meet than other exemptions (it refers to “harm” not “substantial damage”) it does make clear that internal advice and discussion may be obtained under the Act.
- the government intends to repeal or amend existing statutory restrictions on disclosure [para 3.20]. The Campaign said these included several “deeply objectionable” provisions which make it an offence for officials to disclose information about various kinds of safety problems.
- some form of “public interest” balancing test would apply, allowing the Commissioner to consider whether any refusal to disclose was in line with the Act’s general objective of encouraging more accountability [para 3.19].
The Campaign said it nevertheless had a number of reservations. It was concerned that:
- fees could become an obstacle to access. The white paper proposes that enquirers would be charged an application fee of up to £10, modelled on the application fee for access to computerised personal files under the Data Protection Act (DPA), plus additional charges for requests which “involve significant additional work”. The Campaign pointed out that the Data Protection Registrar has previously expressed “serious doubts” about whether the DPA fee should be retained given that “on occasions it may be a deterrent to those seeking to exercise their rights” .
- the proposed legislation would only apply to “the administrative functions” of the police [para 2.2]. The Campaign believed that information relating to its law enforcement functions should be available, so long as disclosure did not damage those functions. This is the test that is currently applied under the Data Protection Act.
- the security and intelligence services would not be subject to the Act. The Campaign pointed out that the CIA was subject to the US FOI Act, and the equivalent Canadian and New Zealand services were covered by their countries’ laws too. “MI5 is now responsible for tasks with no national security content, including the investigation of social security fraud, so there is no case for excluding them from the new Act altogether” the Campaign said.
1. Data Protection & the EU Directive, The View of the Data Protection Registrar, July 1996