That Tony Blair regrets introducing the Freedom of Information Act has been known for some time. But the force with which he reproaches himself in his new autobiography for doing so is truly remarkable: Read More
That Tony Blair regrets introducing the Freedom of Information Act has been known for some time. But the force with which he reproaches himself in his new autobiography for doing so is truly remarkable: Read More
The Campaign for Freedom of Information said it was deeply disappointed by the government’s draft Freedom of Information (FoI) bill published today.  “This is not just a major retreat from the government’s own white paper. In key areas the bill is weaker than the openness code introduced by the Conservatives” it said.
A backbench Freedom of Information (FOI) Bill introduced in the House of Commons today will highlight dissatisfaction over the government’s slow progress in bringing forward its own long-promised Bill.
This briefing was produced for MPs and the media for a debate on Freedom of Information held in the House of Commons on 6 July 1998. It expresses concern at reports that some of the white paper proposals – which the Campaign had warmly welcomed – were the subject of considerable opposition from within government.
We have been surprised to see from a number of recent press reports that some of the white paper’s fundamental commitments are apparently being challenged by senior ministers and officials. If true, this would be a matter of grave concern.
In particular, it has been suggested that a Freedom of Information (FOI) Bill may not be included in the next Queen’s Speech and that efforts have been made to substantially weaken the powers of the Information Commissioner, who will enforce the proposed legislation.
It is difficult to believe that the FOI proposals could be challenged in such a fundamental way. The white paper, introduced by an emphatic preface from the Prime Minister, was the collective decision of government, approved by cabinet after extensive consideration by a high level ministerial committee. Dr David Clark MP, the Chancellor of the Duchy of Lancaster, stated that it “has the complete and utter endorsement of the Government as a whole….It is the centre of the government’s approach to constitutional reform”. Labour’s promises on this issue, which are described in the enclosed document (‘Labour Commitments to Freedom of Information’) have repeatedly been reaffirmed over the past 25 years. It should be unthinkable for anyone to contemplate delaying or weakening such a long-standing and repeatedly reaffirmed pledge, not least because of the widespread cynicism that any such move would engender.
At the Campaign for Freedom of Information’s annual Awards in March 1996, Tony Blair made it clear that freedom of information was “not some isolated constitutional reform” but “a change that is absolutely fundamental to how we see politics developing in this country”. He added:
“I don’t believe that [an FOI Act’s] impact would simply be in the pure matter of legislation…It would also signal a culture change that would make a dramatic difference to the way that Britain is governed. The very fact of its introduction will signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country and sees election to serve the public as being given on trust…
I regard it not merely as simply a list of commitments that we give because at some point in time, someone got up and agitated for it…It is genuinely about changing the relationship in politics today.
There is so much disaffection from politics, so much disillusion with it, and one of…the reasons is that we live in a modern and a far better educated and far more open and far more assertive democracy and country and it’s good that people feel in that way. The irony is that the system of government is about fifty, sixty, seventy years behind the actual feelings and sentiments of the broad majority of people. A Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open but more effective and efficient government for the future.”
A stronger case for early legislation could hardly be made.
The role of the Information Commissioner
The white paper proposed that the FOI Act would be enforced by a new Information Commissioner with the powers order public authorities to disclose information. His decisions would be challengeable by judicial review, but could not be appealed against on their merits. The white paper explained:
“We have decided to take this approach because we believe it to be in the best interests of the FOI applicant. Overseas experience shows that where appeals are allowed to the courts, a public authority which is reluctant to disclose information will often seek leave to appeal simply to delay the implementation of a decision. The cost of making an appeal to the courts would also favour the public authority over the individual applicant”.
We welcome this approach. It would provide the ordinary citizen with a remedy which carries the the power of a court to order disclosure but without the prohibitive costs. Some press reports suggest that there has been discussion of the possibility of permitting the Commissioner to question a department’s decision on judicial review grounds only. Any such move would leave the Commissioner virtually powerless in most cases. Subsequent press reports suggest that this proposal has been rejected, and that the Commissioner’s powers will remain as set out in the white paper. Instead, a new Tribunal will be established to hear appeals against the Commissioner’s orders.
We hope the debate will clarify whether this is in fact the case and, if so, how any Tribunal will be constituted and on what grounds appeals to it can be made. The implications are:
* if public authorities can challenge the Commissioner’s decisions on their merits (and not just on judicial review grounds) there are likely to be more appeals, leading to greater delays in releasing information, especially in contentious cases. The Tribunal’s decisions themselves will inevitably be challengeable in court, adding further to the potential delay;
* companies seeking to block the disclosure of information about their safety and environmental record or consumer products, would also have these additional grounds on which to challenge disclosure decisions;
* parties before the Tribunal are likely to be legally represented, adding to the costs of the appeals mechanism, and favouring government and business in relation to the ordinary individual.
The readiness of some departments to obstruct disclosure should not be underestimated. Reporting on his experience with complaints under the Open Government code of practice, introduced in 1994, the former Ombudsman, Sir William Reid reported:
“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. I have found it time-consuming to have to consider a whole series of different defences, even when many of them prove to have no real foundation.”
The new government has adopted a more liberal approach to disclosure under the code. Despite this, problems have continued. The present Ombudsman, Mr Michael Buckley has said that some departments engage in a:
“process of haggling…about the interpretation, whether or not the Code applies…”
“…there are one or two Permanent Secretaries who are in no doubt that we think they and their departments are really just looking for reasons, clutching at straws one might almost say, to avoid the release of information.”
“[they] dispute my interpretation of the Code and the exemptions under it; or dispute my judgment regarding the ‘harm’ test”
“[some departments] adopt a ‘scatter-gun’ approach and pepper their response with a range of Code exemptions many of which are of no relevance to the case”
The solution to such problems should be a Commissioner with strong powers to order disclosure, and measures to minimise any bias against the citizen – for example in terms of cost or delay – from any subsequent right of appeal.
We are concerned at the proposal to exclude a number of bodies and functions from the scope of the Act. The most serious of the proposed exclusions relate to the law enforcement functions of the police, police authorities and government departments such as the Immigration Service. Others include (a) the Security and Intelligence Services (b) the prosecution functions of the Crown Prosecution Service (c) personnel records (d) and legal advice.
* mean that no information about the body or function will be available even if disclosure would cause no harm at all. No overseas freedom of information law adopts this approach in relation to the police or immigration authorities. Information is always available, unless disclosure is shown to be potentially harmful.
* mean that even where there is an overriding public interest, because of serious misconduct, information cannot be obtained. There are currently a wide range of concerns about the police, for example, relating to their handling of the investigation into the Lawrence murder, the spraying of a pensioner in his car with CS gas, and the Metropolitan Police Commissioner’s acknowledgement that a minority of officers are in his words “corrupt, dishonest, unethical”. However, grave the misconduct, the the proposed Act will provide no access to information about such matters.
* involve removing some existing rights introduced by the former government, for example to immigration information, which has been available under the Open Government code of practice; * are inconsistent with the white paper’s stated intention of ensuring that decisions are based on the contents of the individual record, and not the class into which it falls; * may lead to suspicion about the bodies involved, who – unlike the rest of the public sector – will be permitted to keep information secret even where they cannot demonstrate that disclosure would be harmful. This may weaken public confidence in their work.
Further details are given on pages 4-10 of the Campaign’s response to the white paper, and paras 23-39 of the Public Administration Committee report.
The privatised utilities
The white paper proposed that the privatised utilities would be subject to the FOI Act in their own right. However, according to press reports, the utilities are to be dropped from the Act’s scope. Instead, only a limited degree of access – to information which they hold in relation to their statutory functions – will be possible.
The original proposal would provide a welcome response to the widespread concern at the loss of accountability resulting from privatisation of publicly owned utilities. The absence of competition and consumer choice in these essential industries coupled with the complex regulatory structures to which they are subject distinguishes them from conventional private sector bodies. The Public Administration Committee proposed that the Bill should apply “to companies which are monopoly, dominant, or franchised suppliers in one of the regulated ‘utility’ markets” but this proposal appears to have been rejected.
There is widespread support for including the utilities in an FOI Act:
“It is only possible to identify whether regulators are fulfilling their duties if the inter-relationships between the regulated and non-regulated activities of the relevant companies are transparent. Restricting Freedom of Information requirements to the regulated functions of the utility companies will mean consumers cannot access information crucial to interpreting information about core functions. For example, it would be difficult to establish whether cross subsidies were taking place between the different activities through mechanisms such as transfer pricing.” (Sheila McKechnie, Director, Consumers’ Association)
“The privatised utilities – water and electricity for instance – are special and as such have a greater onus to be open about their activities….the services they are providing are essential, they are still broadly monopolies, and should be available to consumers on fair terms. As long as there is no effective competition and the industries continue to be regulated, their regulated activities should be open to scrutiny….the regulatory process itself needs to be more open so that interested parties can contribute effectively to the process and challenge information and assumptions.” (National Consumer Council)
“The privatised utilities are providing essential public services and are natural monopolies. There is an overriding case for openness, especially in areas such as disconnections, debt recovery strategy, the way in which prices are set, and their general approach towards the community and their employees.” (Michael Jeram, Head of Energy, UNISON)
We also have a number of other concerns, that:
* charges should not become a deterrent to reasonable requests (see pages 36-42 of the Campaign’s Response)
* people should be able to discover what kinds of information authorities hold (pages 45-46)
* there should be some sanction for authorities which deliberately destroy records in order to prevent their disclosure (pages 49-50).
Campaign for Freedom of Information, July 3, 1998
1. Speech at conference ‘Freedom of Information is Coming’ organised by the Campaign for Freedom of Information, Church House, London SW1, 2.2.98
2. Your Right to Know, paras 5.10-5.19
3. Para 5.16
4. Parliamentary Commissioner for Administration, Annual Report for 1995, page 51
5. Oral Evidence to the Public Administration Committee, 2/12/97, Q.34
6. Oral Evidence to the Public Administration Committee, 2/12/97, Q.19
7. Written Evidence to the Public Administration Committee, January 1998
8. Parliamentary Ombudsman, Annual Report, 1997-98, para 6.13
9. Evidence to the Home Affairs Select Committee, December 1997
10. See page 5 of the Campaign’s ‘Response to the Freedom of Information White Paper‘
11. Para 3.8
12. ‘Information bill faces revision’, Financial Times, 20-21.6.98
13. Paragraph 44
Transcript of a tape recording
Before the last General Election, the Labour Party pledged to fight the culture of secrecy in Government in our manifesto. In our Manifesto, we argued that culture leads to contempt for other points of view which, in turn, leads to defective policy decisions. Ill-conceived policies lead to waste and misery.
We promised a radical solution – a Freedom of Information Act which would give Britain a strong culture of Government openness. We promised to make Britain a world beacon by creating a model freedom of information regime.
These were – and are – our aims.
In Opposition, we had prepared much of the ground for our ambitious constitutional reform programme – Devolution for Scotland and Wales; giving greater effect to the European Convention on Human Rights; granting independence to the Bank of England; and much more.
But, though our aims for Freedom of Information were clear, real work remained to be done on the detail. The Campaign for Freedom of Information – more than anyone – will appreciate the complexities.
Some criticised us for not proceeding with Freedom of Information immediately. But we wanted to make sure that our policies were thought through properly. And of course, no government can carry through its whole manifesto in one year. We also wanted to make sure we were much more radical than the Code of Practice used by the last government. We needed to make sure those changes would be both effective and enforceable.
When we published our White Paper, “Your Right to Know”, in December last year, our critics were silenced. Our proposals have been warmly welcomed, not least by the Campaign for Freedom of Information, as you have heard. The Campaign said they “should provide a fundamental break with Britain’s tradition of Government secrecy.”
We have begun as we mean to continue. Alongside the White Paper, we published a volume of background papers. These papers help to explain why our proposals have developed in the way they have. They were intended to make the debate on Freedom of Information more informed.
This is an example of the way a Freedom of Information regime should work. Government should adequately and actively take the lead in promoting openness. We should be ready to open our doors, our files, our databases, so that the British people know what is being said and done in their name.
These background papers were, generally, well received in the spirit in which they were published. Those unused to transparency in Government worried that we were being too open. Some feared that these papers would be used only by our opponents, searching for information to use against us.
That has not happened. The background papers have not brought the house down. They have not been the cause of anger or anxious debate. Instead, what they have done is helped to make the debate better informed.
This is really what Freedom of Information, I think, is about – giving people the chance to understand how Government works and why it has reached particular decisions.
I have no doubt that journalists and campaigners will take advantage of our regime of greater openness to reveal facts which may be uncomfortable for officials and Ministers. That is their job. Investigative journalism has an important role in making open government a reality. Over time, we can expect there to be a few headline-grabbing revelations as a result of the Freedom of Information Act. And why not? The media will be big gainers from the new freedom of information regime but the public will benefit even more.
The great majority of requests for information under the Act will be from ordinary people who want to be better informed. Armed with the information that only Governments can provide, they will be able to evaluate Government policy. We will also see increasing openness in the very ordinary everyday business of delivering public services. And from this Act, and from the Data Protection Act, individuals will have better opportunities to check the personal information held about themselves by public organisations.
I said that our White Paper was well received. It has also been well debated. At every stage of the process of formulating our policy, we have been open. This will continue. We received over 500 responses to the White Paper. This month they were published on the Internet. They are also now available in book form, in 6 volumes – I am afraid – for £37.
This is a timely reminder that Freedom of Information does not come without cost. We will do everything we reasonably can to minimise charges to applicants seeking information, but it is unrealistic to ask for all enquiries to be met free of charge. After all, every pound of taxpayers’ money we spend on providing information is a pound which cannot be spent on school books, or hospital beds, or nursery care.
Government is about tough choices. In an ideal world, certainly, Freedom of Information would bring no costs to the public. But we are not living in an ideal world. We have to balance all these competing demands for funds. Some form of charging is unavoidable.
I know that this is an area which troubles the Campaign. Your thoughtful response to our White Paper forcefully makes the case against charging. We will consider it very carefully because, of course, it is a major issue. But I cannot promise that we will come to an end result which will be entirely to your satisfaction.
Charging is not the only question which needs to be discussed further. Consultation revealed a raft of issues on which more thought or greater clarification is needed. The range of possible exclusions; the role of commercial confidentiality; access to personnel records; information given in confidence; and the impact of the Freedom of Information legislation on local government are just a few of the areas we need to consider further.
Perhaps even more importantly – and more fundamentally – we need to start considering how to make Britain’s Freedom of Information regime effective. How can people make use of the powers which the Freedom of Information Act will provide? How will they find out what information exists? How will they know what to ask for?
The Government needs the help of organisations like the Campaign to begin answering these vital questions. We have no monopoly of good ideas. We are very ready to steal some of yours!
There is still time to look for the best way to provide an effective regime. The consultation period on the White Paper has closed, but that is not the end of the dialogue. We are committed to openness at every stage.
Our next step will be to produce a draft Freedom of Information Bill. When it is ready, it will also be subject to wide consultation. Our aim is for the draft Bill to be published during the Summer. By the time we come to legislate, our proposals for a genuine Freedom of Information regime in this country will have been debated, scrutinised and considered from every angle. As a result, we should have a strong regime that will stand the test of time.
We have no doubt that open Government is good Government. Politicians of all parties should be encouraging the people of this country to engage in debate on the way their society is being shaped for the future.
But this is a hollow desire unless our citizens have access to official information. This Government is committed to openness, but our goodwill is no guarantee for the future. That is why we will enshrine the principles of open Government in statute.
Our intention is that no Government should ever again be able to shrug off the legitimate questions of the British people.
I close with this pledge. We will deliver a Freedom of Information Act and it will deliver.
The Campaign’s response, published in March 1998, to the government’s white paper on FoI. This detailed paper also incorporates the Campaign’s evidence to the House of Commons Public Administration Committee in January 1998.
A transcript of the Campaign’s conference on the FoI white paper held in February 1998. Speakers: Dr David Clark MP, the minister then responsible for Freedom of Information; Elizabeth France, Data Protection Commissioner; Kevin Murphy, Information Commissioner of Ireland; Michael Tankersley, Senior Attorney, Public Citizen Litigation Group; Sheila McKechnie, Director, Consumers’ Association; Charles Ramsden, then Head of the FOI Unit in the Cabinet Office; John Wadham, Director, Liberty; Jonathan Baume, General Secretary, Association of First Division Civil Servants; Richard Thomas, Director, Public Policy Group, Clifford Chance; and Maurice Frankel, Director, Campaign for Freedom of Information.
This article by the Campaign’s director, Maurice Frankel, appeared in The Guardian on 16 December 1997
Few people expected to be impressed by the government’s proposals on freedom of information (FOI). But the white paper, published last week by David Clark, the Chancellor of the Duchy of Lancaster, has adopted a surprisingly radical approach.
Take the scope. FOI laws normally apply to only central government. But the new proposals will cover the whole public sector – including local government, NHS bodies, quangos, nationalised industries, schools, universities, public service broadcasters and the courts’ administrative functions. Most strikingly, the privatised utilities and the work of private bodies on contracted-out functions will be caught. So we will be able to learn about the water companies’ disconnection policies, whether Group 4 is giving value for money in escorting prisoners to court, and how the firm which processes our tax returns is protecting taxpayers’ confidentiality.
The 30-year period for old government files will not be reduced. But the Act will apply retrospectively, providing a seamless right of access to both current and old records. Files awaiting their turn in the Public Record Office will be available before their 30th birthday on request.
The Act will apply not only to paper, electronic and other records but to unrecorded information too. Facts which are known to officials but not on file will be accessible, perhaps discouraging those who might assume that they can circumvent the Act by not recording sensitive material.
Some countries’ FOI laws have been blunted by giving ministers a final veto over decisions of the appeals body – a precedent the government has fortunately rejected. An independent Information Commissioner with the power of a court to order disclosure will deal with complaints. Authorities will be forced to comply or face proceedings for contempt. So applicants will have the full benefit of an enforceable remedy, without the costs of actually having to go to court. The Commissioner could however be challenged by judicial review.
There will be charges for information. The white paper suggests that enquirers may have to pay a £10 application fee, modelled on the Data Protection Act (DPA) fee for seeing computerised personal files, plus additional charges where requests “involve significant additional work”. But the Data Protection Registrar has previously expressed “serious doubts” about the DPA fee given that “on occasions it may be a deterrent to those seeking to exercise their rights”. Someone obliged to seek information from a wide range of agencies may find the application fees alone quickly exceed their ability to pay. However the Commissioner will be able to waive charges on public interest grounds. The key to any FOI Act are the exemptions, which so far are only sketched out. FOI laws usually allow information to be withheld if disclosure would cause “damage” to specified interests. The government is proposing that the normal test should be “substantial damage”, a tougher test, suggesting that in case of doubt the decision will favour the applicant. This test is likely to apply to, for example, commercial confidentiality. But it is not yet clear how it will work in areas covered by the Official Secrets Act, such as defence, international relations, national security and law enforcement where the secrecy act’s lower damage tests may apply instead.
A lower test is also proposed for civil service advice to ministers. Here the test will be simple “harm”. But advice will not be excluded from access altogether, though it will certainly be harder to obtain. Some form of public interest test, requiring that decisions are in line with the Act’s overall purpose of promoting accountability, will apply in relation to all exemptions.
Some government function will be shielded from scrutiny. The security and intelligence services will not be covered by the Act at all, even in relation to non-national security work, such as the investigation of major social security fraud. More worryingly, only the administrative functions of the the police will be covered. We may be able to ask about crime clear-up rates, but not about the use of CS gas or deaths in custody. The investigatory functions of other enforcement bodies will also be excluded, a restriction likely to prove contentious if it extends to bodies dealing with safety and environmental offences.
The white paper promises to sweep away many of the legal restrictions which currently prohibit disclosure. Information about pharmaceutical safety should be an early gain: an absurd restriction still makes it an offence for officials to reveal safety data obtained from manufacturers. Similarly, the Health and Safety Executive may be liberated from a restriction which prevents them telling anyone, whose life is not directly threatened, about safety problems at premises.
The factual and scientific data collected on problems such as BSE are likely to become accessible, making it more difficult for ministers to ‘Gummerise’ us into believing something is safe, contrary to the evidence. Whether expert scientific advice will be available – or be regarded as policy advice – is not yet clear. Hospitals will have to cough up their mortality rates for specific treatments and surgical procedures. The public’s present rights to local authority information will be greatly improved, no longer applying only to matters about to be discussed at an open meeting. And for quangos and utilities, where disclosure requirements are now minimal, FOI – likely to come into force at the end of 1999 – really will be the start of an era.
The Campaign for Freedom of Information warmly welcomed the government’s proposals on freedom of information (FOI) published today (Your Right to Know, Cm 3818).