What’s wrong with the FOI Bill

A version of this article by the Campaign’s director, Maurice Frankel,
appeared in The House Magazine on 6 December 1999.

The Freedom of Information (FOI) Bill gives the public too few rights, and ministers too much power. This is not the bold right to know that Labour has been promising for 25 years. Some progress has been made since the much criticised draft FOI bill. The government has removed a number of provisions, such as an authority’s right to insist on knowing why an applicant wanted information, and introduced other improvements. But the most fundamental flaws remain.

In many areas, all-embracing blanket exemptions give authorities a free hand in deciding what to release or suppress. The most unacceptable applies to all information relating to the “formulation or development of government policy”. This is not limited to sensitive civil service advice. It exempts all information considered during the development of a policy, including the facts, their analysis, descriptions of existing practice, scientific advice, extrapolations from existing trends or mundane exchanges between officials. Although the bill invites ministers to release factual information voluntarily, they cannot be required to.

Ministers would be able to refuse most elementary information about the justification for their decisions, on everything from arms exports to privatising the tube. How much would a policy cost? How many jobs would be created or lost? What studies have been done? Are the targets practical? Are there feasible alternatives? Of course, ministers will have something to say about such questions. But the bill does not let us see whether what they say is supported by the facts, based on selective quotation or contradicted by their own files. Here the bill is weaker than the openness code, introduced by the Conservatives in 1994. The code requires the facts and analysis behind decisions to be published and only permits policy information to be withheld if disclosure would harm the frankness of internal discussion. The bill has no such test of harm.

It also falls far short of Ireland’s 1997 FOI law, which exempts policy information only if authorities can show that disclosures would be ‘contrary to the public interest’ – an issue on which the Irish Commissioner, not ministers, has the final word. Facts, their analysis and expert scientific advice cannot be withheld under this exemption at all. If Ireland’s government can live with this degree of openness, why can’t ours?

There are many other blanket exemptions. One applies to all ministerial communications including, for example, a letter reminding colleagues that new regulations are about to come into force. Another protects any information about a minister’s private office, even the number of staff employed. A third catches information supplied in confidence, which will shield vested interests trying to influence decisions behind the scenes. A fourth exempts documents created during any statutory inquiry, so board of inquiry reports into a military accidents could be secret. A near-blanket exemption applies to anything which in an authority’s reasonable “opinion” would prejudice the “effective conduct of public affairs. Giving legal weight to authorities’ “opinion” means that most decisions under this vague provision could not be challenged at all.

Information relating to police investigations, are covered by a blanket exemption – despite the Macpherson report which explicitly rejected any such class exemption. So the parents of Stephen Lawrence would not be entitled to know when the police first learnt the names of the murder suspects. Information about investigations by regulatory authorities which could lead to legal proceedings is also exempt. This would catch information about the Paddington rail crash. These exemptions should apply only where disclosure can clearly be shown to cause harm.

The second main concern is the bill’s public interest test. Authorities would have to consider disclosing exempt information in the public interest, but the Commissioner could only recommend disclosure, not require it. Ministers and authorities would always have the final say. An authority which has squandered public funds, broken its promises, ignored reports of child abuse or endangered patients through incompetent cancer screening will decide for itself if the public interest justifies exposing its own malpractice. Those actively trying to suppress the truth will be pleased to learn that they decide what is in the public interest.

Why should authorities be permitted to ignore the Commissioner in this way? If they think a ruling is wrong, the bill already gives them a generous right of appeal, first to a tribunal and then the courts. The Commissioner’s rulings on the public interest should be binding.

The Scottish Executive’s proposals for a Scottish FOI Act have already overtaken the UK bill. Factual background material would have to be disclosed in Scotland. The harm test under most Scottish exemptions will be whether disclosure causes “substantial prejudice”, a tougher hurdle than the Westminster bill’s test of “prejudice”. The Scottish Commissioner would be able to order disclosure in the public interest (though not where certain class exemptions apply) making him or her far more powerful than the UK Commissioner.

That Freedom of Information legislation is being introduced at all is welcome. But the benefits of FOI – more accountability, better decisions, greater honesty and more trust in government – are unlikely to follow unless this bill is substantially improved.

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