“Substantial defects” remain in Freedom of Information proposals

There will still be “substantial defects” in the government’s Freedom of Information proposals, despite the changes announced by the Home Secretary today, according to the Campaign for Freedom of Information . The changes themselves are welcome and would remove a number of obstacles to openness, the Campaign said. “But they do not go far enough and leave serious flaws at the heart of the measure”.

“In key areas, ministers could not be compelled to disclose information and would be free to decide what to reveal and what to suppress. The public would have no right to see scientific advice about new health hazards such as BSE; or to see government figures for the number of jobs affected by a foxhunting ban or by new funding to employ police officers. Official assessments of the safety implications of privatising the underground or the air traffic control system would be secret” said the Campaign’s director Maurice Frankel. Such information would be protected by a massive exemption for all information about “the formulation or development of government policy” . Today’s announcement indicates that the bill will be amended to specifically encourage the disclosure of factual background information – but there would still be no right to the facts behind a new policy, an “unbelievable omission” Mr Frankel said. The bill was still weaker than the openness code introduced by the Conservatives, which required the government to show that disclosure of such information would be harmful, he said.

Another unjustifiable exemption will allow secrecy about investigations into fatal accidents like the Paddington rail crash, or dangerous consumer products, the mistreatment of laboratory animals, pensions misselling or other malpractice which could lead to criminal charges. Investigations which did not involve possible offences would be accessible, following today’s announcement. But the more serious investigations, into possible offences would remain secret, even if it had been decided not to prosecute. “There is no justification for a blanket exemption for information of such significance” the Campaign said.

Although the bill allows exempt information to be disclosed in the public interest, ministers – not the independent Information Commissioner – would decide what was in the public interest. Today’s announcement would allow the Commissioner to recommend that information should be disclosed, but ministers and authorities would not be forced to comply. “If a mistake has been made and authorities are trying to conceal it, they will be able to ignore the Commissioner’s recommendations and carry on covering it up. They should have to comply. If they think the Commissioner has got it wrong they already have a right of appeal under the draft bill to a tribunal, and subsequently to the courts, which gives them all the protection they need.” Mr Frankel said.

On the less central issues, the Home Secretary had made worthwhile improvements, the Campaign said. It welcomed the reduction to 20 working days of the time for responding to requests; the removal of the so-called “jigsaw” exemption which allowed information to be withheld if it could be harmful in combination with other information; the fact that authorities would not have the right to insist on knowing why an applicant wanted information or to disclose information on condition it was not given to a journalist; and the Commissioner’s improved powers to make authorities disclose information which they have undertaken to release as part of the bill’s “publication schemes”.

But other issues of concern have not been dealt with. Authorities will still be able to withhold information if in their “opinion” disclosure would be harmful to frankness or “the effective conduct of public affairs”. Giving legal weight to their “opinions” will make most decisions immune from challenge, the Campaign said. A blanket exemption for information supplied in confidence and a broad exemption for disclosures which could prejudice commercial interests would allow excessively broad claims of commercial confidentiality and protect lobbying by vested interests. And the government had not accepted the recommendation of both select committees that to withhold information authorities should show that disclosure would cause “substantial prejudice” instead of just “prejudice”.

A Parliamentary Early Day Motion, calling for substantial improvements to the draft FOI Bill has so far been signed by 151 MPs, including over 100 Labour backbenchers. The Campaign said pressure to significantly improve the bill would continue when the measure was introduced in the Commons.

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