Unlocking the Truth: The Government’s FOI white paper

This article by the Campaign’s director, Maurice Frankel, appeared in The Guardian on 16 December 1997

Few people expected to be impressed by the government’s proposals on freedom of information (FOI). But the white paper, published last week by David Clark, the Chancellor of the Duchy of Lancaster, has adopted a surprisingly radical approach.

Take the scope. FOI laws normally apply to only central government. But the new proposals will cover the whole public sector – including local government, NHS bodies, quangos, nationalised industries, schools, universities, public service broadcasters and the courts’ administrative functions. Most strikingly, the privatised utilities and the work of private bodies on contracted-out functions will be caught. So we will be able to learn about the water companies’ disconnection policies, whether Group 4 is giving value for money in escorting prisoners to court, and how the firm which processes our tax returns is protecting taxpayers’ confidentiality.

The 30-year period for old government files will not be reduced. But the Act will apply retrospectively, providing a seamless right of access to both current and old records. Files awaiting their turn in the Public Record Office will be available before their 30th birthday on request.

The Act will apply not only to paper, electronic and other records but to unrecorded information too. Facts which are known to officials but not on file will be accessible, perhaps discouraging those who might assume that they can circumvent the Act by not recording sensitive material.

Some countries’ FOI laws have been blunted by giving ministers a final veto over decisions of the appeals body – a precedent the government has fortunately rejected. An independent Information Commissioner with the power of a court to order disclosure will deal with complaints. Authorities will be forced to comply or face proceedings for contempt. So applicants will have the full benefit of an enforceable remedy, without the costs of actually having to go to court. The Commissioner could however be challenged by judicial review.

There will be charges for information. The white paper suggests that enquirers may have to pay a £10 application fee, modelled on the Data Protection Act (DPA) fee for seeing computerised personal files, plus additional charges where requests “involve significant additional work”. But the Data Protection Registrar has previously expressed “serious doubts” about the DPA fee given that “on occasions it may be a deterrent to those seeking to exercise their rights”. Someone obliged to seek information from a wide range of agencies may find the application fees alone quickly exceed their ability to pay. However the Commissioner will be able to waive charges on public interest grounds. The key to any FOI Act are the exemptions, which so far are only sketched out. FOI laws usually allow information to be withheld if disclosure would cause “damage” to specified interests. The government is proposing that the normal test should be “substantial damage”, a tougher test, suggesting that in case of doubt the decision will favour the applicant. This test is likely to apply to, for example, commercial confidentiality. But it is not yet clear how it will work in areas covered by the Official Secrets Act, such as defence, international relations, national security and law enforcement where the secrecy act’s lower damage tests may apply instead.

A lower test is also proposed for civil service advice to ministers. Here the test will be simple “harm”. But advice will not be excluded from access altogether, though it will certainly be harder to obtain. Some form of public interest test, requiring that decisions are in line with the Act’s overall purpose of promoting accountability, will apply in relation to all exemptions.

Some government function will be shielded from scrutiny. The security and intelligence services will not be covered by the Act at all, even in relation to non-national security work, such as the investigation of major social security fraud. More worryingly, only the administrative functions of the the police will be covered. We may be able to ask about crime clear-up rates, but not about the use of CS gas or deaths in custody. The investigatory functions of other enforcement bodies will also be excluded, a restriction likely to prove contentious if it extends to bodies dealing with safety and environmental offences.

The white paper promises to sweep away many of the legal restrictions which currently prohibit disclosure. Information about pharmaceutical safety should be an early gain: an absurd restriction still makes it an offence for officials to reveal safety data obtained from manufacturers. Similarly, the Health and Safety Executive may be liberated from a restriction which prevents them telling anyone, whose life is not directly threatened, about safety problems at premises.

The factual and scientific data collected on problems such as BSE are likely to become accessible, making it more difficult for ministers to ‘Gummerise’ us into believing something is safe, contrary to the evidence. Whether expert scientific advice will be available – or be regarded as policy advice – is not yet clear. Hospitals will have to cough up their mortality rates for specific treatments and surgical procedures. The public’s present rights to local authority information will be greatly improved, no longer applying only to matters about to be discussed at an open meeting. And for quangos and utilities, where disclosure requirements are now minimal, FOI – likely to come into force at the end of 1999 – really will be the start of an era.

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