Backtrack, Jack. You’ve got it wrong.

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

The Guardian’s Open Up campaign this week has highlighted the shortcomings of Jack Straw’s draft freedom of information bill. Responding to its criticism, Jack Straw points out (Letters, June 22) that “nothing in it prevents the disclosure of information”, and that authorities will have to consider the discretionary release of exempt information in the public interest.

But government has always been able to release information voluntarily if it chooses. An FoI act is meant to create rights to information, not to rely on the goodwill of authorities for voluntary disclosure.

Mr Straw has, however, already reconsidered on two points. He has agreed to remove the blanket exemption for information obtained by safety authorities and acknowledged that factual information should not be caught by the blanket policy exemption. These are helpful changes, particularly if they foreshadow a wider willingness to think again.

But an enormous amount of rethinking is needed to make this bill acceptable. Why should any information be exempt without evidence that it could cause harm? Why should authorities be allowed to refuse to even confirm the existence of such information? Why should our information commissioner, unlike those of other countries, be prohibited from ordering disclosure on grounds of overriding public interest?

Why should the final word on the public interest in revealing serious malpractice be left to the offending authority? Why should authorities considering a discretionary disclosure have the right to pry – by insisting on knowing an applicant’s motives – and the right to gag, revealing information only if the requester promises to keep it confidential? Why should the time for responding to requests be 40 days, longer than any other country allows? Most mysterious of all, why should authorities be able to suppress harmless information on the grounds that, combined with other confidential information which the authority has no intention of releasing, the combined information could cause harm?

An area that particularly needs rethinking is the panoramic exemption for everything that has crossed official desks during the making of any policy. Ireland’s recent FoI act could show the way.

Policy information can only be withheld if government can show that disclosure would be “contrary to the public interest”. The exemption cannot apply to factual analysis, technical advice, reasons for decisions and decision-making guidelines. Cabinet papers are covered by a separate exemption – but only until they are five years old. The commissioner can rule on all mat ters, including the public interest.

When a journalist applied for the monthly budgetary reports made by health boards, and associated correspondence, Ireland’s health department claimed they were all exempt. The commissioner ruled that only proposals that were still under consideration could be withheld. But information about spending levels and cuts made to achieve them should be disclosed, partly because it was factual information and partly because “there is also a public interest in the community knowing what these may be”.

The UK Commissioner would be unable to make such a ruling. Ireland’s approach is based on experience under New Zealand’s FoI law, where its law commission recently reported that “the assumption that policy advice will eventually be released has in our view improved the quality and transparency of that advice”.

The post-decisional release of such material would allow parliament and the public to judge whether the implications of a policy have been properly considered and the potential objections addressed.

The anticipation of scrutiny would itself improve the quality of analysis, and help counter any tendency to give in to powerful lobby groups advancing weak arguments or to brush problems aside in the hope no-one will notice. It may also lead to better public appreciation of the complexity of decisions and the real constraints under which ministers operate.

Mr Straw justifies the blanket policy exemption by arguing that “the product of such private deliberations is almost always a public announcement of policy”. But the public statement may deceive, as when the last government secretly changed the policy on arms sales to Iraq, and deliberately concealed the change from parliament.

If another arms-to-Iraq affair occurred, nothing in the draft bill would shed even a glimmer of light on it. Neither the public, nor Labour MPs, can regard that as acceptable.

Maurice Frankel is director of the Campaign for Freedom of Information.

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