Testing the Open Government Code of Practice

NOTE: The Code of Practice on Access to Govenment Information was introduced by the Conservative Government in April 1994 as an alternative to a freedom of information act. The Code has now been superseded by the Freedom of Information Act 2000 which came fully into force on 1 January 2005. An archived version of the Code is available on the The National Archives website here.

Have you been dying to get your hands on previously secret official information?

If so, this could be the time to ask for it

The government is promising to release more information on request under a code of practice. The code contains a long list of exemptions, allowing broad classes of information to be withheld. But if you think these are being wrongly applied you can now appeal via an MP to the Parliamentary Ombudsman.

The Code of Practice on Access to Government Information, introduced by the then Minister of Science and Public Service, William Waldegrave, on April 4 1994 (and revised in January 1997) is a step in the right direction. The code itself only promises access to “information” not actual documents. However, the Ombudsman has said tht if someone asks for a document, he will regard that as a request for all the information in the document, and would expect the document to be released if it does not contain exempt information.

The Labour government is committed to introducing a Freedom of Information Act, which would replace the code. A draft bill is due to be published in May 1999, and the final legislation is unlikely to come into force before the middle of 2001 at the earliest. Until then the Code of Practice will remain in force. In the meantime, the government has told departments to apply the code more liberally so as “to disclose as much information as possible”.

The Campaign for Freedom of Information is encouraging people to use the code – both to benefit from any improvements it may bring and to reveal its shortcomings. We will be keen to hear of your practical experience with the code – positive and negative.

The Code

Under the code the government promises to release information on request. For simple requests the code says information will normally be provided within 20 working days of the request’s receipt. This period may be extended if significant work is required.

If you are not satisfied with the response you can appeal, first by asking the department itself to review its original decision. Afterwards you can ask an MP to forward your complaint to the Parliamentary Ombudsman. Complaints can be made about the withholding of information, about misleading replies and about unreasonable delays or charges.

Advantages
The code offers a number of valuable benefits:

* The Ombudsman’s role under the code is a genuine advance which will create pressure for greater disclosure. The Ombudsman has the power to see any relevant government files (other than cabinet and cabinet committee papers) and has been given additional resources to investigate complaints under the code. It is clear that some information which has not been released in the past can be obtained under the code.

* Departments’ internal rules and manuals, containing guidance on their dealings with the public and businesses, will be published under the code [Paragraph 3(ii)]. This will help organisations which advise the public on their rights; individuals who feel they may not have been fairly treated by a department or agency; and anyone who wants to check how the government is applying the rules regulating companies and products.

* The code creates, for the first time, a general commitment to give people reasons for administrative decisions affecting them [Paragraph 3(iii)].

Defects
The code nevertheless suffers from serious defects:

* The code commits the government to supply “information”, not actual documents [Paragraph 4]. This implies that applicants will normally get a letter, summarising the information in departmental documents – not the documents themselves. However, this approach has been challenged by the Parliamentary Ombudsman. He has said that he will regard a request for a document as a request for all the information in it. He has suggested that the most practical way of doing this may sometimes be to release a copy of the actual document.

* While some of the exemptions are unobjectionable, many are far too wide and a few appear not to be justified at all. However, under the code the Ombudsman could in some cases recommend that exempt information be disclosed in the public interest.

* Fees can be charged for dealing with many kinds of requests. Some departments are proposing to charge potentially prohibitive fees.

* Some important parts of government are not covered by the code, which applies only to government departments and those other bodies subject to the Parliamentary Ombudsman’s jurisdiction. Since June 1995 NHS bodies, such as trusts, health authorities and GPs have had their own separate code. But bodies such as the police, the security services, the nationalised industries, the Monopolies and Mergers Commission, the National Curriculum Council and hundreds of other non-departmental public bodies are not subject to any code. The previous government originally suggested that local authorities would be covered by a separate code of their own, but no such code was produced and local authorities have been advised to introduce their own access policies.
[See: Open Government: A good practice note on access to information, published June 1995. Available from the Local Government Association, 26 Chapter Street, London SW1P 4ND]

* Applicants cannot contact the Ombudsman directly but must ask an MP to do so. The previous Ombudsman has said this requirement “serves to deprive members of the public of possible redress”. The requirement that departments must be asked to review any refusal themselves before an applicant can complain to the Ombudsman, may create delay.

* Because the code has no legal force it cannot override existing statutory restrictions on disclosure. There are some 250 of these.

* Ultimately the Ombudsman can only recommend, not compel, disclosure. Departments will prefer to comply, since failure to do so will lead to adverse publicity. So far no department has refused to comply. However, where the disclosure itself would be highly embarrassing, ministers may decide to ignore the Ombudsman’s recommendations.

The Campaign is urging people to use the code, and wherever appropriate, challenge any unjustified restrictions first by asking the department itself to review the decision and then by complaining, via an MP, to the Ombudsman. If the code works, you will benefit. If it doesn’t, the request may help document the case for further reform, such as a Freedom of Information Act.

USING THE CODE – SOME PRACTICAL SUGGESTIONS

Applying for information

* If you have been refused information in the past by a government department or agency, reapply for it now under the code – the code applies retrospectively.

* Make a point of mentioning the code in any future requests for information (eg “This is a request under the Code of Practice on Access to Government Information”). However, if you haven’t done this, and have asked for information informally, you will still be able to invoke the code’s complaints process at a later stage.

* Apply in writing, and ask for the information to be supplied “within 20 days as required by the code”.

* Make your request as specific as possible: this will reduce the chances of being charged a fee, or having your request turned down altogether. (Requests which are “too general” or would require “unreasonable diversion of resources” can be refused.) Asking for information covering a short period (eg the last 12 months) is less likely to provoke charges than a request covering several years. If you get the information you can make a further request to cover an earlier period.

* If you want information about a body which is not covered by the code, try applying to a government department with responsibility for that body. For example, nationalised industries are not covered but have sponsoring departments which are. For example, you could try the Department of Trade and Industry for information about the Post Office or the Department of the Environment for information about local government issues.

Documents

* Although the code is biassed against the disclosure of documents, the Ombudsman has made it clear that if a document is requested and does not contain exempt information he may recommend that its disclosure. Moreover, departments may make themselves look ridiculous if they withhold documents when the easiest way of dealing with a request is to release them. In practice, documents are often released.

* Ask for documents if you think you need them, and challenge any refusals. You may want to do this when (a) you can identify a particular document which you know exists; (b) you have already been given a summary of the information but need more detail, available only by looking at the original documentation (for example, to check what factors have been taken into account in reaching conclusions, or to assess the methodology); (c) you have some other particular need to see an actual report – for example, because it directly affects your personal affairs; (d) documents of this kind have been released in the past; (e) you think it will be much easier for the department to release a document than to summarise it.

Analysis

* If the government announces a new policy or decision relevant to your work or interests, ask for the “facts and analysis of the facts” which underlie the decision.

* The code says the facts and analysis which “the Government considers relevant and important” will be published voluntarily at the time of the decision [Paragraph 3(i)]. The obvious weakness is that this depends on the government’s view of what is relevant. The phrasing is probably intended to prevent the Ombudsman challenging decisions. However, unless or until the Ombudsman says that he cannot investigate such complaints you should ask him to intervene. Before asking for such information, check what factual and analytical material has been published (for example, in Hansard, when the decision was announced). If you think it is inadequate or one-sided ask for more facts or analysis. Complain if you don’t get them.

Personal files

* Individuals should be able to obtain information from non-computerised (‘manual’) files held about them by government departments or agencies under the code – including information recorded before the code came into force.

* The new NHS code (see page 10) may help to overcome the present restriction in the Access to Health Records Act 1990, on access to pre-1991 medical records. The NHS code does apply to information in these earlier records.

* It will also apply to information in other kinds of personal files held by government bodies, for example social security or tax records. The code does not commit departments to releasing copies of the records themselves (only ‘information’ from them) but the Ombudsman’s ruling on this point (see page 4) means that it is worth asking for particular documents when you know or suspect that they exist and challenging any refusals.

Exempt information

The code lists 15 classes of exempt information – some of them extraordinarily broad. These (in edited form) include:

* information harmful to defence, security and international relations;

* information whose release would harm the frankness of internal discussions: including details of cabinet proceedings; internal advice; projections and assumptions relating to internal policy analysis; and analysis of alternative or rejected policy options;

* communications with the Royal Family and Privy Council proceedings;

* information which would prejudice the administration of justice or legal proceedings or a public inquiry, including information which has been or is likely to be addressed in such proceedings; information relating to completed proceedings or to investigations which might have resulted in proceedings; information covered by legal professional privilege; information which could prejudice the prevention or detection of crime or the apprehension of offenders or the security of buildings; information harmful to public order, public safety or individual safety or which could identify confidential informants; information which could increase the chance of damage to the environment or endangered species;

* information about immigration, nationality and entry clearance cases which would prejudice immigration controls;

* information which could harm the management of the economy or prejudice the collection of taxes;

* information which would prejudice a department’s competitive position or negotiations or the proper and efficient conduct of its operations;

* personnel and vetting records;

* requests which are vexatious, manifestly unreasonable, too general or would require unreasonable diversion of resources;

* information which is shortly to be published or whose release would be “premature in relation to a planned announcement”;

* incomplete analysis or research which could be misleading if published or information about companies or products held for statistical or research or health and safety or food surveillance purposes;

* personal information whose release would be an unwarranted invasion of privacy;

* information which would harm the competitive position of a third party;

* information supplied in confidence by a third party who has not consented to its disclosure;

* information whose disclosure is prohibited by law or international agreement or which would breach Parliamentary privilege.

Despite this overwhelming list, do not be put off asking for information:

* The exemptions are discretionary – they allow, but do not require, departments to withhold information.

* Even exempt information may be disclosed under the code where there is an overriding public interest in disclosure.

* Even if the information is withheld, the refusal (if it is unreasonable) will help to document the code’s limitations.

If information is refused, insist on being told which of the code’s exemptions has been relied on. It is a requirement of the code [paragraphs 3(iii) and 5] that people are given reasons for decisions affecting them, and this includes reasons for withholding information.

Disclosure in “the public interest”

The code states that where exemptions refer to the possible harm that may result from disclosure, the exempt information may be released where:

“any harm or prejudice arising from disclosure is outweighed by the public interest in making information available” [Part II, preamble].

This is a valuable principle. But departments are likely to resist pressure to disclose exempt information, however strong the case for it. You may need to persuade the Ombudsman of the public interest in disclosure: don’t assume that it is self-evident. If the Ombudsman is persuaded, he will have to persuade the department to agree to release the information. Since the Ombudsman has no power to compel disclosure, this could be a source of contention.

Arguing the public interest case

There is no definition of “the public interest” in the code. However, in referring to the general aims of the code, the Cabinet Office’s guidance states:

“The public interest in disclosure is particularly strong where the information in question would assist public understanding of an issue subject to current national debate, or improve the transparency and accountability of a particular function of Government” [Guidance, Part I, paragraph 3 Note: all references to the Guidance are to the first edition, published in 1994]

You may also want to argue the public interest case in terms of the need to: protect public safety or the environment; correct an abuse of authority or improper conduct in public office; remedy injustice to an individual; secure compensation for people who have been injured; expose the improper use of public funds; or prevent crime or corruption. Provide as much evidence as you can. Any precedent for disclosure of similar information in the past will be helpful.

The type of information and the degree of harm that could result from disclosure will be crucial:

* It may be easier to argue for disclosure of information covered by exemptions which protect administrative convenience (such as the exemption for information which would “harm the proper and efficient conduct” of a department’s operations) than for information with implications for defence or national security.

* On the other hand, if the possible harm to, say, defence is extremely slight and unlikely to occur, and the case for releasing the information substantial – the balance of public interest may favour disclosure.

The government’s guidance on the code gives only one example of exempt information that may be disclosable in the public interest – commercially confidential information. This it says may be released “where disclosure is necessary or conducive to the protection of public health, public safety or the environment” and where these considerations “clearly outweigh financial loss or prejudice to the competitive position of a third party” [Part II, paragraph 13.13].

Charges

The code of practice allows charges to be made for most kinds of information. Departments set their own charges and some have set prohibitively high fees, saying that the first hour of staff time will be free but that afterwards £20 an hour will be charged. Others allow more free time before charges start. Fees at this level could make the code too expensive for anyone other than commercial organisations. Unlike the US Freedom of Information Act, fees will not be waived for requests that are in the public interest.

Don’t be put off by charges

Despite these potentially high charges, do not be put off from making requests:

* Certain types of request under the code must be granted free of charge.

* You must be told of the charges in advance and asked if you will agree to them.

* Departments often decide not ask for a fee – even though their charging policy may allow them to do so.

* You may be able to reduce or avoid charges by making your request more specific, or narrower, so that it involves less work.

* You can – and should – challenge unreasonable charges by complaining via an MP to the Ombudsman. Some departments’ charging schemes appear inherently unreasonable. Do not accept charges just because they are in line with published charging arrangements.

When requests should be free

* The ‘Open Government’ White Paper (Cm 2290) says “it is not the intention to charge for information which is now routinely provided free of charge”. Departments will probably be tempted to do so. Any such charge should always be challenged.

* The Cabinet Office guidance says charges should not be made for information which departments should disclose as part of the “fair and accountable performance of their functions” [Guidance, Part I, paragraph 71]. However, the examples of such information given are limited (see the next point). Quote the above statement to argue that any information needed to hold departments properly accountable should be available without charge.

* The only information which the Cabinet Office explicitly says should be provided free is information explaining: “benefits, grants, rights and entitlements; the standards, and availability of services; the reasons for administrative decisions made in applicant’s case; the ways in which the citizen may exercise rights to appeal or complain about a decision; regulatory requirements affecting affairs of a business, or common interests; the main points of existing departmental policies or initiatives”.

* In all other cases, the Cabinet Office guidance states that “The general presumption should…be that requests under the Code should be charged for, when they cause additional work…Charges will generally only apply where a request is novel or requires a department to undertake work which it would not have undertaken if the request had not been made…” [Guidance, Part III, paragraphs 1-3].

* Departments are likely to ask for fees to be paid before they provide information. If you challenge these, you may hold up the information. To avoid delay, you may want to consider paying the fee – if you can afford it – but at the same time challenging its reasonableness, and trying to have it reduced or set aside afterwards.

* If you are asked to pay a prohibitively high fee, consider asking an MP who may also have an interest in obtaining the same information, whether he or she will apply for it in a written Parliamentary Question. There will be no charges for this. However, if the cost of answering the question is likely to be more than £450, ministers may refuse to answer.

The NHS

NHS bodies are subject to the separate Code of Practice on Openness in the NHS which came into force on June 1 1995.

* The NHS code applies to health authorities, health boards and NHS trusts, family doctors, dentists, opticians, pharmacists and community health councils and certain other NHS bodies such as the Mental Health Commission, the Public Health Laboratory Service, the Prescription Pricing Authority and others.

* Complaints under the Code are made to the Health Service Ombudsman, not the Parliamentary Ombudsman.

* The Department of Health and the NHS Executive are subject to the central government code of practice – not the NHS code – as are the corresponding departments within the Welsh, Scottish and Northern Ireland Offices.

* The NHS code itself is similar to the central government code, though there are some differences in the exemptions. Copies of the NHS Code and the separate Guidance on Implementation can be obtained from The Open Government Task Force, NHS Executive, Room 5/E/59/Quarry House, Quarry Hill, Leeds LS2 7UE, Tel: (01132) 546370/545121.

MPs

MPs can themselves make applications under the code. However, if they do they will be charged for information on the same basis as other users.

* MPs will not be able to ask the Ombudsman to investigate any refusal to answer questions in Parliament. However, if MPs make separate applications under the code, they can use its appeal mechanism.

* At the end of the day the Ombudsman can only give an independent view on whether a refusal is justified under the code, and try to persuade a minister to release the information if it is not. He cannot compel a minister to release information.

* Where a parliamentary question has been refused on the grounds that an answer would involve a “disproportionate cost” (ie that it would cost more than £450 to answer) MPs may not find the code helpful, as they are liable to be asked to pay such amounts themselves.

Departmental reviews

* You must ask the department to review its own decision before you can take a complaint to the Ombudsman. The easiest way to do this may be to ask the person who took the original decision to arrange for the decision to be reviewed at a higher level within the department or agency.

* When asking for a departmental review, give your reasons for thinking that the original decision was wrong, that charges are unreasonable, or that the public interest in a disclosure outweighs any harm.

* The code gives no time limits for these reviews. If you think a department’s review has already taken too long, tell it that unless you get an immediate decision you will complain, via an MP, to the Ombudsman both about the delay and the original decision.

Complaints to the Ombudsman

You cannot complain to the Ombudsman directly but must ask an MP to forward your complaint. However, this can be done by any MP – not just your constituency MP.

Consider complaining to the Ombudsman about:

* any withholding of information which does not appear to be justified under the code’s exemptions

* the withholding of exempt information where you think there is an overriding public interest in disclosure

* replies which you suspect are misleading, incomplete or one-sided

* the failure of a minister, department or agency to publish an adequate account of the facts and analysis which have led to a major decision or policy announcement

* the failure to give reasons for any decision affecting you, including any decision to withhold information

* the failure to give access to internal rules, guidance and manuals affecting a department’s or agency’s dealings with the public or businesses

* unreasonable delays in releasing information

* unreasonable charges

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