“Deeply disappointing” information bill “weaker than Conservatives’ openness code”

The Campaign for Freedom of Information said it was deeply disappointed by the government’s draft Freedom of Information (FoI) bill published today. [1]  “This is not just a major retreat from the government’s own white paper. In key areas the bill is weaker than the openness code introduced by the Conservatives” it said.

The Campaign’s director Maurice Frankel said: “The bill allows authorities to classify safety information as top secret. It replaces the code’s public interest test by a voluntary test, making it easier for authorities to conceal misconduct. It abandons the white paper promise of access to internal discussion where disclosure would not be harmful, and instead creates a blanket exclusion for all information about the development of policy; even factual information and scientific analysis on matters like BSE and genetically modified food could be withheld under this provision. It replaces the white paper’s “substantial harm” test by a lower “prejudice” test. It contains “catch all” exemptions allowing information to be refused without real evidence of any harm. It rejects the Macpherson report’s recommendations that all police information should be covered by the bill. It allows new exemptions to be created at short notice to block requests already received. And it doubles the time authorities are given to provide information, from the code’s 20 days to 40 days, which would make Britain’s FoI law the slowest and most unresponsive in the world. “

“It achieves the remarkable feat of making the code, introduced by a government opposed in principle to FoI, appear a more positive measure than legislation drawn up by a government committed to the issue for 25 years,” he added. [2]

The draft bill proposes a right of access to records held by public authorities, and designated private bodies carrying out public functions or contracts. An Information Commissioner, with power to order disclosure would enforce it. Charges for information would be modest.

The Campaign said the bill would improve people’s rights to see personal files; and would provide greater openness in local government, quangos, contractors and other bodies not currently covered by the open government codes.

The Campaign highlighted a number of issues:

Crucial safety information will be kept secret under the bill. All reports on road, rail, ferry or air accidents, accidents involving fires, dangerous consumer products, or chemical and nuclear incidents will be exempt. [3]  Information obtained during investigations into the risks caused to workers and the public by industrial hazards will also be exempt.[4]  The public will have no right to any such information under the bill, even if disclosure would cause no harm of any kind. [5]   “This is an astounding proposal,” the Campaign said. “It will keep the public in the dark about safety. It will encourage complacency by safety authorities. It is almost impossible to believe that this is part of a Labour government’s Freedom of Information proposals.”

The bill would replace the code’s binding public interest test with a voluntary one, making it easier for authorities to conceal misconduct. Under the code, the Ombudsman can rule that information which is exempt (e.g. because disclosure would harm commercial confidentiality) should be disclosed in the public interest.[6]   Public interest grounds might exist if there had been misconduct, danger to safety or if the public had been misled.[7]   But the bill explicitly prohibits the Information Commissioner from adopting this approach.[8]

Authorities will merely have to consider the discretionary release of exempt information in the public interest. If they fail to, the Commissioner could make them reconsider, but will not be able to compel disclosure, however overwhelming the case. The white paper envisaged that the Commissioner would have this power.[9]   Mr Frankel said: “An authority which is covering up the fact that it has been squandering public money or endangering public safety will brush aside a voluntary test. All it has to do is claim to have thought about the public interest before refusing to disclose, and it will be safe. The Commissioner may be perfectly aware that a cover-up is going on, yet be unable to do anything about it.”

Authorities which make a discretionary disclosure can ‘gag’ the recipient. Before volunteering to release information in the public interest, an authority can insist on knowing what the applicant intends to do with it. It can then impose restrictions on its use, prohibiting the applicant from making it public.[10]   The Campaign pointed out that under the bill’s “class exemptions” much harmless information would be exempt. Yet applicants could be given such information as a favour, and prohibited from passing it on. “It is hard to see how it could be appropriate, or even lawful, to prevent someone publishing information that has been released to them ‘in the public interest’,” the Campaign said. It was also worried that the provisions could be abused. Authorities which did not want to set a precedent for disclosing certain information might claim to be releasing it under their discretionary powers, imposing restrictions. People might accept unjustified restrictions without realising that their rights were being infringed. “This could produce a ‘need to know’ culture, where authorities decide arbitrarily to whom and under what terms they disclose,” the Campaign said.

The white paper’s substantial harm test has been dropped, making it far easier for authorities to withhold information. The FoI white paper said authorities wishing to withhold information would have to show that disclosure would cause “substantial harm”. But the draft bill allows requests to be refused if disclosure would cause “prejudice”, a far weaker test, no better than the code’s.[11]   The white paper described the tests in the code as “insufficient”[12]   and intended to strengthen them, but the government has now reverted to the code’s test. “A substantial volume of information which would have been available under the white paper proposals will now be kept secret”, the Campaign said.

Information about the development of government policy will be completely inaccessible and more secret than at present. The bill exempts all information relating to the formulation or development of government policy, regardless of whether disclosure would cause harm.[13]   The bill breaks the white paper promise that internal discussion would be accessible, subject to a lower test of harm than “substantial harm”.[14]   It is far more restrictive than the code, which requires evidence that disclosure would “would harm the frankness and candour of internal discussion” and that there is no overriding public interest in disclosure. Under this provision, which is similar to that in several overseas laws, the Ombudsman has sometimes ruled that advice should be disclosed. The bill removes this option. “The exemption could be used to conceal any kind of information relating to the development of a policy. Even purely factual material could be hidden until it is 30 years old. Scientific advice on hazards such as BSE or genetically modified crops could be suppressed without challenge. So could assessments of the likely impact of a decision, or analysis that shows whether a department has genuinely addressed objections to a proposal, or is just hoping no-one will notice. Knowing such analysis might become public would often improve, not harm decision-making, encouraging officials to ensure their work could withstand scrutiny” the Campaign said.

A catch-all exemption allows authorities to withhold any information which in their “opinion” could “prejudice the effective conduct of public affairs”.[15]   Because the exemption gives legal weight to the “opinion” of an authority, it is almost impossible to challenge, even if the decision is based on serious errors of judgement. The decision would have to be ‘irrational’ or ‘outrageous in its defiance of logic’ before it could be questioned.[16]   There is obvious scope for abuse, given the vagueness of “prejudice to public affairs”. The provision is directly based on an exemption in New Zealand’s FoI Act. But the latter provision contains no less than three safeguards which the UK Bill omits: (a) the prejudice is limited to two specified types of harm – it is not open ended as in the bill (b) it has to be objectively demonstrated – there is no reference to the authority’s “opinion” and (c) the decision can be overturned on public interest grounds.[17]

Harmless information could be suppressed on the grounds that, combined with other unspecified and secret information, its disclosure could cause harm.[18]   This provides another broad “catch all” ground for secrecy. It would apply if harm could result by combining innocuous information which someone had requested with “any other information”, including information which no-one has asked for, which is not likely to be made public, and which could not be obtained under the bill. This provision is not apparently prompted by national security concerns. It could be invoked in the interests of protecting the frankness of exchanges between officials, commercial confidentiality or good relations between Westminster and the Scottish or Welsh assemblies.

If someone wanted innocuous background information about a commercial transaction, and made a point of not asking for the price (because they assumed it to be commercially sensitive) their request could be refused on the grounds that, should they happen to discover the price, the combined information could harm commercial interests. This principle could be used block almost any request under the bill.

New exemptions could be created at short notice to block requests already received. If a request is received which an authority has no grounds to refuse, a new exemption can be created by Parliamentary order in time to stop the request.[19]   Entire classes of information could also be exempted in this way. Although an order would have to be approved by both Houses of Parliament, the Campaign says “this is unlikely to be a great obstacle to a government with a substantial majority”. The white paper had ruled out any form of veto, saying “a government veto would undermine the authority of the Information Commissioner and erode public confidence in the Act”.[20]   The Campaign said“even if this veto is intended to be used only exceptionally, it will damage the Act’s credibility. It will indicate to people that ministers always hold a trump card”.

Authorities will be allowed to withhold information from the Commissioner which could lead to them being prosecuted for an offence.[21]   This remarkable provision gives public authorities the right, normally enjoyed only by individuals or private bodies, to refuse to incriminate themselves. They would not have to supply the Commissioner with information indicating that they are guilty of an offence. But this cannot be appropriate in a measure meant to expose wrongdoing. ” A public authority which discriminates on racial grounds, or commits a pollution offence, could refuse to reveal details to a requester; and when the Commissioner investigates, lawfully refuse to co-operate. This type of provision is meant to protect the individual against the state, here it protects the state from the individual” the Campaign said.

Large amounts of information held by the police and regulators are excluded from access.[22]   Information obtained during an investigation into a crime or a breach of a legal duty would be exempt wholesale, even if disclosure would cause no harm to law enforcement or the fairness of legal proceedings. The government has rejected the Macpherson report’s recommendation there should be no ‘class’ exclusions for the police and that all police information should be available unless disclosure would cause “substantial harm”.[23]   In fact, this exemption applies to any regulatory body, not just the police. All information obtained during an investigation, including information now available under the code, will be secret. “This will undermine efforts to prevent miscarriages of justice. It will weaken the accountability of the police and regulatory bodies. No FoI law allows this information to be withheld without evidence that disclosure would be harmful,” the Campaign said.

Only recorded information will be available.[24]   The white paper proposed that authorities should also have to disclose information that officials know about, even if it is not recorded – as under New Zealand’s FoI law. This proposal has been dropped, which will make it easier for authorities to avoid disclosure by not recording sensitive details, the Campaign said.

Authorities will be allowed 40 days to respond to requests – longer than any other country’s FoI law and double the code’s 20-day limit.[25]   This brings the bill into line with the Data Protection Act, which provides access to personal files. But the Campaign said “if consistency is needed, the government should reduce the Data Protection Act period, otherwise Britain’s FoI law will be the slowest and most unresponsive in the world.”

The Act may not come into full force until 5 years after it is passed. Although it is apparently intended to bring the Act into force for government departments relatively quickly, other bodies might be given longer to prepare. But the Campaign said no public body could need anything remotely like 5 years.

 

The Campaign also said the bill went beyond the white paper in some respects.

An official who deliberately destroyed a record after it had been requested, would commit an offence. Under the white paper, it would have been an offence to destroy a record after the Commissioner had asked for it. The bill makes it an offence to destroy, alter or conceal a record which an applicant has requested, an important sanction.

Fees are likely to be lower than suggested in the white paper. The government says it intends to limit fees to no more than 10 per cent of the cost of finding requested records, and not charge for the time spent reviewing their contents. This would be a more liberal approach than the white paper had proposed.

Contractors carrying out public functions on behalf of an authority could be brought directly under the Act. The white paper proposed to include contractors, but implied that people would have to ask the authority to get the information for them from the contractor. A right to apply directly to the contractor, as seems to be proposed, would be a more effective solution.

The possibility of extending the bill to the administrative functions of Parliament is being considered.

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