Abysmal Handiwork

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Guardian on 25 May 1999

If there was ever a case for suppressing an embarrassing document to protect ministers from criticism, it was yesterday’s draft Freedom of Information (FoI) bill. The bill was widely expected to fall short of the radical white paper published in 1997. But could anyone have expected it to reveal how deeply ministers have absorbed the culture of secrecy they purport to be demolishing?

First the good news. The bill creates a right of access to records held by public bodies, and some private bodies carrying out public functions or contracts. It may even be extended to cover administrative information about parliament itself. The right will be enforced by an information commissioner, with the power to order disclosure. Charges for information will be modest.

But the white paper’s centrepiece, the requirement that authorities wanting to withhold information must demonstrate that release would cause “substantial harm”, has been dropped. They will only have to show that disclosure would “prejudice” various interests, allowing much more information to be concealed.

The real problem is the exemptions with no test of harm at all. The police and law enforcement bodies will be allowed to withhold any information obtained during an investigation, even if there is no risk to an investigation or prosecution.

Macpherson’s recommendation that there should be no such “class exemptions” for the police has been rejected. Key information about the incompetent handling of the Stephen Lawrence murder investigation – such as the dates when the names of suspects were drawn to the police’s attention – would be secret.

The awfulness of this approach really hits home when you discover that information obtained by safety agencies investigating accidents will be dealt with in the same indiscriminate manner. Information about the causes of accidents will simply not be accessible, even if the public desperately need to know about a safety problem.

Reports into accidents involving dangerous cars, train crashes, unsafe domestic appliances, air disasters, chemical fires or nuclear incidents will go into a permanently secret filing cabinet. The same goes for reports into risks faced by workers or the public from industrial hazards. Agencies may release these voluntarily, if they choose, but are not required to under the bill. What can have blinded conscientious ministers to the abysmal nature of these proposals?

Next comes information which “relates to the formulation or development of government policy”. It’s all going to be secret, with no test of harm. This is not just sensitive policy advice. Purely factual material can be withheld if it relates to a policy which is, or at the time was, under development.

Do you want to know what surveys into the likely impact of the poll tax Mrs Thatcher’s ministers commissioned? The information will probably be withheld under this exemption. So will current scientific advice on BSE or the safety of genetically modified organisms.

The white paper had proposed a harm test in this area. FoI laws in Australia, New Zealand and Ireland all allow internal discussion to be disclosed if the balance of public interests favours openness. Even the existing open government code, introduced by the Conservatives in 1994, is more liberal, and allows some disclosure, subject to a harm test. The new bill removes this possibility.

The more you read this bill, the more attractive the Conservatives’ code becomes. The parliamentary ombudsman who supervises the code can rule in favour of disclosure on public interest grounds. He has said that if he found a department had published misleading information he would be likely to hold that there was a strong public interest in revealing the truth, even if it involved exempt information. Under Labour’s proposals, the FoI commissioner is expressly prohibited from doing this.

Instead, authorities will have to consider whether the public interest justifies them making a “discretionary” disclosure of exempt information. The commissioner’s role is limited to ensuring that the authority has thought about the public interest. If not, the commissioner can only make them reconsider, but cannot compel disclosure, however overwhelming the case. An authority which has been abusing its powers will be free to rebuff inquirers, so long as it remembers to mention the high priority it has attached to the public interest.

In 1996, Tony Blair argued that the Scott report “has made the case for a freedom of information act absolutely unanswerable”. But this bill addresses none of the Scott report’s concerns. Anyone probing arms to Iraq might arguably do better under the Tory code, with its substantive public interest test, than under Labour’s bill.

Worse is to come. Before making a “discretionary” disclosure of exempt information, the authority can insist on knowing why the applicant wants it, and may disclose it on condition the applicant agrees not to make it public. To appreciate how deeply illiberal this is, remember that information may be “exempt” even though it is not capable of causing harm.

There are “catch-all” exemptions too. Information can be concealed if, in the “reasonable opinion” of a minister or other person it would “prejudice the effective conduct of public affairs”. This could mean anything. Because the bill gives legal weight to the minister’s “opinion” decisions will be almost impossible to challenge. The wording is based on a similar exemption in New Zealand’s FoI law, but the latter contains no less than three separate safeguards against abuse – all of which are omitted here.

Information whose disclosure is not itself harmful can also be suppressed if, combined with any other confidential information, it would “prejudice” interests such as defence, commercial confidentiality, the frankness of official advice, or good relations between the Westminster and Scottish parliaments.

The purely hypothetical possibility of the two pieces of information being combined would be enough to allow the requested information to be treated as exempt. There is probably no point looking for a rational explanation here. Ideas as bizarre as this speak of deep seated anxiety about disclosure.

A request which manages to evade all these restrictions can still be stopped. The bill gives ministers the power to create new exemptions at short notice, by parliamentary order. The provision is designed to block requests which have already been received but cannot otherwise be refused. A new exemption, tailor made for the pending request, can be rushed through parliament, no great problem for a government with a large majority.

What about delays? The openness code requires a response to be given within 20 days, but the bill doubles this period. This brings FoI into line with the data protection act’s 40-day response time. But it would make Britain’s FoI act the slowest and most unresponsive in the world.

Three years ago Tony Blair promised that Labour’s FoI act would “signal a new relationship between government and people; a relationship which sees the public as legitimate stakeholders in the running of the country”. There is little sign of that objective in yesterday’s bill.

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