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Queen’s Speech briefing

QUEEN’S SPEECH BRIEFING

23 November 1999

Following the reports of two select committees, the government has made a number of improvements to the draft Freedom of Information (FOI) Bill. However, the bill still suffers from several substantial defects.

This briefing deals with two main concerns:

1. The existence of ‘class exemptions’ which protect all information falling within particular classes, regardless of whether disclosure would cause harm

2. The fact that ministers and authorities – not the Information Commissioner – have the final word on whether information should be disclosed in the public interest

1. Introduction

The bill creates a right of access to information held by a wide range of public authorities, subject to a series of exemptions.

‘Harm test’ exemptions. Some of the bill’s exemptions require authorities to show that disclosure would cause harm. In most cases the test is whether disclosure would “prejudice” interests such as defence, international relations, the country’s economic interests or the commercial interests of a company or public authority. If the Commissioner believes that such harm would not be caused, she[1] can overrule a minister or authority and order disclosure.

‘Class’ exemptions contain no harm test. They allow all information within a particular class to be withheld, even if disclosure would not be harmful, permitting secrecy in circumstances where it is completely unnecessary. The bill contains a number of these, including a gigantic exemption for all information relating to the formulation or development of government policy. Here, the Commissioner cannot order disclosure[2] and the decision of the minister or authority is final.

Public interest disclosure. When an authority considers that information is exempt, under either a harm-tested or a class exemption, (or where the cost of a request exceeds a particular limit[3]) the bill in most cases requires it to consider whether a discretionary disclosure on public interest grounds is justified.[4] But the Commissioner is prohibited from ordering disclosure in the public interest,[5] and can only make recommendations, which authorities are free to reject.[6]

2. Class exemptions
Formulation of government policy

The bill contains a series of class exemptions, the most important of which protects all information which “relates to the formulation or development of government policy”.[7]

The exemption is not limited to sensitive civil service advice, or to information whose disclosure would harm the decision-making process or the frankness of internal deliberations. It applies to all information considered during the development of a policy, including purely factual information, analysis of the facts, scientific advice, mundane exchanges between officials, extrapolations from existing trends or simple descriptions of existing practice.

The effect would be to allow ministers to refuse to answer virtually any question about the justification for their policies.

In his evidence to the Public Administration select committee, the Home Secretary, Jack Straw said the “issue of factual or background information…is important and…I think on the whole ought to be disclosed“.[8] Yet the bill fails to require this. Instead, when considering whether to make a discretionary disclosure in the public interest, authorities are encouraged to “have regard to the desirability” of releasing background factual information.[9] But if an authority fails to release such information, the Commissioner could only recommend – not compel – its disclosure.

This represents a retreat from the position under the openness code (the Code of Practice on Access to Government Information) introduced by the Conservatives in 1994. Under the code:

* Information relating to policy can only be withheld if disclosure would “harm the frankness and candour of internal discussion”.[10] This initial presumption, that information should be available unless disclosure can be shown to be harmful, is not found in the bill.

* Even if disclosure would be harmful, the Ombudsman can still recommend disclosure if the public interest in openness outweighs any harm.

* The facts and analysis of the facts relied on in reaching decisions must be published by departments.[11]

A straightforward requirement to publish background factual material should be uncontentious, yet the bill still does not provide it. As long ago as 1977, the Croham directive introduced by the last Labour government provided that “factual and analytical material” should normally be published once decisions have been taken.[12]

Lord Butler, the former cabinet secretary, told a House of Lords select committee looking at the draft FOI bill in July 1999 that:

“when we were coming up to the 1997 election, knowing what the government policy was in this matter, my senior colleagues and I gave some thought to how we could regularly structure submissions to Ministers in a way that would enable us easily to separate the background which was publishable from, as it were, the subjective advice which was confidential. It would take a bit of training and changing practice to do that, but I think that people could very readily adapt to that.”[13]

A more significant change would be to make the disclosure of such material subject to a ‘harm test’, as the FOI white paper proposed,[14] and as the current open government code provides. This would provide greatest protection for discussions during the early stages of policy formulation, so that untested ideas could be exchanged and considered, with a stronger presumption of disclosure once decisions had been taken and announced. This is the position under both the Irish and New Zealand FOI laws, both of which favour the disclosure of information about options after decisions have been taken.

Ireland’s 1997 FOI Act, in particular, goes considerably beyond the UK bill:

* only matters relating to “the deliberative processes” of an authority are exempt

* the exemption only applies if disclosure is shown to be “contrary to the public interest”

* the exemption does not apply at all to certain types of information including factual information and its analysis and scientific or technical expert advice.[15]

Other class exemptions

The bill contains a number of other class exemptions:

* Ministers’ private offices. A blanket exemption applies to everything relating to the operation of a Minister’s private office.[16] The broad phrasing means that even the number of staff employed in the office would be exempt.

* Communications between ministers. All communications between ministers including routine exchanges with no implications for collective responsibility, are covered by another blanket exemption.[17] This would extend to a letter from a minister to his colleagues reminding them that new regulations are due to come into force and that steps to prepare for them must be taken.

* The conduct of public affairs. A near-blanket exemption applies to information which, in the authority’s “reasonable opinion” would be likely to “prejudice the effective conduct of public affairs”.[18] The latter term is not defined, and offers wide scope for withholding information. But its most worrying aspect is that it gives legal weight to the authority’s opinion. As a result, most decisions could not be challenged by the Commissioner, even if they were plainly wrong, for example because the authority had a clearly exaggerated view of the consequences of disclosure. Decisions could be overturned only on the judicial review test of “reasonableness”, that is, that the authority’s decision was absurd or irrational. This provision appears to be based on an exemption in New Zealand’s FOI Act, but that contains no less than four safeguards against abuse – all of which have been omitted from the UK bill.[19]

* Investigations. Information relating to investigations into possible offences are covered by a blanket exemption, which would apply permanently – even after any trial had been completed or a decision not to prosecute had been taken.[20] Investigations by the police and regulatory bodies, ranging from the Health & Safety Executive to Trading Standards officers, would be covered. Inquiries into the causes of accidents which might involve offences under health and safety laws, such as the Paddington rail crash, would be withheld.

* Security matters. A number of bodies dealing with security matters fall outside the scope of the Act. However, information about the work of these bodies which is held by other authorities is covered by a blanket exemption – and could not be obtained, regardless of whether disclosure would be harmful. The duty to consider the discretionary release of information in the public interest does not apply to such information. The bodies concerned include not only the security and intelligence services, but the tribunals dealing with complaints about them, the National Criminal Intelligence Services.21 Information not covered by this exemption could be withheld if disclosure was required “for the purpose of safeguarding national security”.[22] This exemption could be demonstrated by a ministerial certificate, though a court could quash a certificate on judicial review grounds (ie if the decision to issue it was irrational).[23]

3. Public Interest

The bill gives ministers and authorities the final say on when disclosure of exempt information is in the public interest. The Commissioner can recommend disclosure but is barred from ordering it on public interest grounds.[24] The Commissioner should have the power to order disclosure in these circumstances.

An authority which has been negligent or complacent or made errors of judgement or unjustified concessions to vested interests will be invited to decide whether the public interest requires it to reveal details of its own malpractice. Although the Commissioner’s recommendations will carry some persuasive weight, an authority determined to avoid scrutiny can simply ignore them.

It has been suggested that the Commissioner’s recommendations are likely to generally be accepted, in the same way as those of the Parliamentary Ombudsman. However:

Although the Parliamentary Ombudsman’s recommendations are usually accepted, this is not invariably so. The Ombudsman’s recommendations on compensating the victims of Channel Tunnel blight were rejected by the last government. It eventually changed its mind, but only after the Transport Secretary had been replaced in a reshuffle, and as the general election – with a large number of marginal Conservative seats in the blighted areas – approached.

The last government also rejected an Ombudsman recommendation that the Ministry of Defence compensate the parents of a serviceman who had died in an accident during the Falklands conflict. The MOD had failed to disclose the truth about the death, withheld information from the inquest and wrongly blamed the individual himself for the accident. The complainant later succeeded in obtaining a second inquest, which reached a different verdict. The MOD rejected their claims for compensation for their legal costs – and then rejected the Ombudsman’s recommendation in support of their case.[25]

The Parliamentary Ombudsman has experienced considerable difficulty in persuading some government departments to accept his recommendations. Since 1994, the Parliamentary Ombudsman has been responsible for supervising the open government code which creates a non-statutory right to information subject to certain exemptions and to a public interest test.[26] The former Ombudsman, William Reid, reported in 1995 that:

“there is a tendency in some departments to use every argument that can be mounted, whether legally-based, Code-based or at times simply obstructive, to help justify a past decision that a particular document or piece of information should not be released instead of reappraising the matter in the light of the Code with an open mind.”[27]

His successor, Michael Buckley, said in 1997 that departments:

“fear that they are setting a precedent…they do not want to say yes, that the department accepts this interpretation of the Code. It turns into a process almost of negotiation”.[28]

He has also referred to departments “haggling” over the interpretation of the code, and of time consuming delays in which departments:

“dispute my interpretation of the Code and the exemptions under it; or dispute my judgement regarding the “harm” test.”[29]

Most graphically, he has commented:

“if the Government wants me to act as referee we cannot have a situation in which every time I award a free kick everyone troops off the field for an elaborate investigation of the rule book and to telephone the FA.”[30]

It had been assumed that the FOI bill, by creating a statutory right of access, would end such haggling. But in significant areas, the bill relies on a similar process of non-binding recommendation, which is likely to preserve the existing unhelpful approach.

The bill’s two tier enforcement system emphasises the lower status of public interest decisions. Authorities will know that they will have to comply with an enforcement notice, or face contempt of court proceedings.[31] But they can be relatively casual about responding to the Commissioner’s views on public interest, which will be set out in a “discretionary disclosure recommendation“.[32] The term itself appears to indicate that recommendations can be rejected without offending against the Commissioner’s authority.

The bill’s structure makes the consideration of a discretionary disclosure a separate and slower stage. Where there is a duty to disclose, authorities must do so within a fixed 20-working day period.[33] But public interest decisions can be delayed for an unspecified longer period.[34] Since a single request will often involve both elements, decisions are likely to trickle out in a two stage process, obscuring the point at which a final decision not to disclose has been made.

Some authorities are markedly more reluctant to accept Ombudsman findings than government departments. Around 6 per cent of the Local Government Ombudsmen’s recommendations to local councils are rejected by them; a pattern which if repeated under FOI would severely damage public confidence in the legislation.

Right of appeal

The bill already permits authorities to appeal against Commissioner decisions to the Information Tribunal[35] and subsequently, on a point of law, to the courts.[36] This should give ministers all the protection they need against possibly mistaken decisions. By insisting on the freedom to ignore the Commissioner altogether on the issue, despite these safeguards, the Government is weakening the credibility of the bill’s enforcement mechanism.

Ireland

Ireland’s Information Commissioner can order disclosure in the public interest, and cannot be overruled by a minister. Some (though not all) exemptions under the Irish Act incorporate a public interest test, including those for policy advice,[37] industrial relations and negotiations,[38] commercial confidences,[39] personal privacy[40] and the financial interests of the state.[41] In these cases, the Commissioner makes a binding ruling on the issue of public interest.

Although the Irish Act contains limited provision for ministerial certificates[42] (which can be used to prevent decisions on exemptions for security, defence, international relations and law enforcement being reviewed by the Commissioner), certificates cannot be issued in relation to the exemptions which contain a public interest test.[43] The Commissioner, not the minister or authority, has the final word.

 

 

Endnotes

1. The post of Commissioner will initially be held by the present Data Protection Registrar, Elizabeth France.

2. Unless she finds that the information does not fall within the exempt class at all

3. Clause 11(1). For central government, this limit is likely to be £500. Lower limits may be set for other authorities.

4. Clause 13(4) requires the authority to consider such a discretionary disclosure, having regard to “all the circumstances of the case and to the desirability of…communicating information…wherever the public interest in disclosure outweighs the public interest in maintaining the exemption in question”.

5. Clauses 50(7) and 52(2)

6. Clause 48(1)

7. Clause 33(1)(a)

8. Select committee on Public Administration, Session 1998-99, third report, ‘Freedom of Information Draft Bill’, HC 570, Evidence given on 21/7/99, Q 1076.

9. Clause 13(5) provides that in considering whether to make a discretionary disclosure in the public interest, authorities should “have regard to the desirability of communicating to the applicant factual information which has been used, or is intended to be used, to provide an informed background to decision-taking”.

10. Code of Practice on Access to Government Information, Exemption 2, Internal Discussion and Advice

11. Code of Practice on Access to Government Information, Part 1, paragraph 3(i)

12. Croham Directive, reproduced in ‘A consumers’ guide to open government’, Outer Circle Policy Unit, March 1980.

13. Report from the Select Committee Appointed to Consider the Draft Freedom of Information Bill, Session 1998-99, HL paper 97, Q.357

14. ‘Your Right to Know. The Government’s Proposals for a Freedom of Information Act’, December 1997, Cm 3818, paragraph 3.12

15. Freedom of Information Act 1997 (Ireland) section 20.

16. Clause 33(1)(d)

17. Clause 33(1)(b)

18. Clause 34(2)(c)

19. Section 9(2)(g) Official Information Act 1982 (New Zealand). This exemption (i) requires objective evidence that disclosure would be harmful, the authority’s “opinion” is irrelevant (ii) permits only two specific types of harm to be taken into account: harm to the frank exchanges of opinions by officials or ministers, and the need to protect officials from improper pressure or harassment – the UK bill is open ended on this point (iii) the withholding of information must be “necessary” for one of these purposes, a strict test and (iv) even if all these conditions are met the information must still be revealed if the harm is outweighed by the public interest in disclosure.

20. Clause 28(1)

21. Clause 21

22. Clause 22(1)

23. Clause 59(3)

24. Clause 50(7) and Clause 52(2)

25. Parliamentary Commissioner for Administration, Annual Report 1997-98, page 39. Following the election, the new government reconsidered the position and agreed to pay compensation.

26. Its formal title is Code of Practice on Access to Government Information

27. Parliamentary Commissioner for Administration, Annual Report 1995, page 51

28. Evidence to Public Administration Committee, 2/12/97

29. Written evidence to Public Administration Committee, January 1998

30. Oral evidence to the Public Administration Committee, 3/2/1998

31. Clause 53(3)

32. Clause 48(1)

33. Clause 9(1)

34. Decisions on discretionary disclosures “must be made within such time as is reasonable in the circumstances”. Clause 13(6)

35. Clause 56(1)

36. Clause 58

37. Irish FOI Act, section 20(1)

38. Irish FOI Act, section 21(1)

39. Irish FOI Act, section 27(1)

40. Irish FOI Act, section 28(5)

41. Irish FOI Act, section 31(3)

42. The Irish certificates in any case provide only a limited form of ministerial veto. They can be challenged on a point of law, and overturned by the High Court; and after 6 months they must be reviewed and endorsed by the Irish prime minister himself.

43. One minor exception appears in the law enforcement exemption, certain parts of which include a public interest test – and may be subject to a ministerial certificate.

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