Just a beginning

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The Guardian on 11 October 1999.

The draft freedom of information bill has attracted a mountain of criticism, not least from two recent select committees which have both called for sweeping changes. Ministers have been particularly sensitive to the charge that the bill actually removes some the existing rights under the Conservatives’ openness code of practice. Publicly, the home secretary called these claims “ludicrous” but the leaked cabinet document shows the amendments are partly intended to demonstrate that the bill is “on a par with the existing provisions in the code”. This is hardly an inspiring objective.

An overriding defect are the several blanket exemptions which allow authorities to withhold information without evidence of harm. One of these, for information about regulatory bodies’ investigations, is to be amended. This is an improvement, but on a truly awful proposal. The draft bill seemed to strive towards self-parody, listing three separate provisions that would suppress information about accidents, public safety and workplace hazards.

Even before the Paddington crash, this was clearly nonsense. Such information will presumably now be withheld only if disclosure could prejudice law enforcement. But this modest change will not extend to police and other criminal investigations, where a blanket exemption will still operate. The Macpherson report specifically rejected this approach, which would prevent the parents of Stephen Lawrence discovering when the police first learnt the names of the murder suspects.

The most worrying of the blanket provisions is the massive get-out for information which “relates to the formulation or development of government policy”. Most FoI laws protect at least some policy advice but none does so in these indiscriminate terms.

Ministers would be able to refuse to answer almost any question about the justification for their policies. This is so sweeping that the home secretary was forced to admit that his own consultation paper had cited misleading examples of documents that would have to be disclosed under the bill. Most would actually be caught by this exemption.

Here the bill is clearly weaker than the code, which subjects policy material to a test of harm, and requires disclosure of analytical factual material.

The leaked document casts no light on what will be done. In his evidence to a select committee, Jack Straw indicated that he hoped to allow disclosure of factual material – but would resist access to advice. The crucial question is not who recommended what, but what the analytical material – typically also regarded as “advice” – shows.

Will the money for a new policy be enough? Have the potential obstacles been addressed? Will a policy stand up, or does it rest purely on whipped up aspirations and spin?

If no progress is made on this issue, the bill will fail a crucial test. There are other blanket exemptions too, notably for information accepted by authorities in confidence – a class that will protect lobbying of government by vested interests, and much else.

The other vital issue is the public interest. Authorities would have to consider releasing exempt information in the public interest, a valuable principle. But the draft bill prohibits the commissioner from ordering disclosure on these grounds. The authority would have the final word; the most the commissioner could do is check that it has thought about the case for openness.

The authority itself, which may well have something to hide, would decide and could not be challenged. Should Railtrack, assuming it is covered at all, determine what the public can know about its investment in safety? Should a minister with an alleged conflict of interest decide the public interest in full disclosure?

The Lords committee said a measure which allows ministers and authorities the final say on this issue would be “a statement of good intentions, but… not a freedom of information act as that term is traditionally understood.” The public administration committee in the Commons also called for the commissioner to be given the final say.

Here, only limited progress is suggested by the leaked document. The commissioner will be allowed to recommend disclosure in the public interest, but still be prevented from compelling it. The commissioner under Ireland’s recent FoI act can order disclosure in the public interest – Britain’s should be able to as well.

The home secretary has listened to complaints about some of the bill’s unacceptable provisions. Authorities will lose the right to withhold incriminating evidence of offences. The strange ‘jigsaw’ clause, allowing information to be withheld because of fears that, in combination with other unspecified information, it could be harmful, is to go. The cutting of authorities’ response times from 40 days to the code’s current limit of 20 working days is also welcome.

But the leaked document is silent about other urgently needed changes. The draft bill allows authorities to withhold much information if, in their “opinion”, it could cause harm. This would make many decisions unchallengeable, even if they are clearly wrong. Many exemptions, such as that for commercial confidentiality, apply when disclosure would cause “prejudice”. The test should be “substantial prejudice”, according to both select committees. An excruciatingly complex exemption for personal information raises doubts about whether information about identifiable individuals will be disclosed even where there are overriding public interest grounds.

Finally, authorities would have the absurd “right to pry” – to insist on knowing why someone want information – and, unbelievably, a “right to gag” allowing them to give someone information on condition it wasn’t passed to a journalist. These clearly oppressive provisions must also go.

The government is shortly due to respond to the select committee – which includes dozens of other important recommendations as well. The fact that the government has accepted the case for some change may be a hopeful sign, if that process continues. But if the leaked document represents the government’s final word, it will not allay serious concerns about the measure.

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