On 17th November, MPs debated John Hemming’s Transparency and Accountability Bill, which contains measures drafted by the Campaign to strengthen the public’s right to know about public services which have been contracted out.
The Campaign’s proposals for a bill to increase FOI access to information held by contractors providing public services have been taken up by John Hemming MP (Lib Dem, Birmingham Yardley) who drew a place in the ballot for Private Members’ Bills. Mr Hemming’s Transparency and Accountability Bill combines measures on a number of different issues. As well as amending the FOI Act in relation to contractors, it includes provisions:
The FOI provisions are in clauses 15 to 17 of the Bill. A copy of the Bill with explanatory notes is available on Mr Hemming’s website, which also allows you to indicate your support for the Bill. The Bill’s second reading in the House of Commons is due to take place on 17th October 2014. However, as Mr Hemming came relatively low in the ballot, Parliamentary time for the bill’s consideration may be limited.
MPs who come up in this week’s ballot for private members’ bills are being urged to introduce a bill to improve the public’s right to know about public service contracts.
The Campaign held a fringe meeting at the Liberal Democrat conference in Liverpool on 18 September 2010. The meeting was addressed by Lord McNally, the Ministry of Justice minister responsible for freedom of information, and Sir Alan Beith MP, the chair of the House of Commons Justice Committee.
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
This briefing gives a clause by clause explanation of the private peer’s FOI bill, introduced by the Conservative peer Lord Lucas, which received a second reading in the House of Lords on 10 February 1999. The bill, which was drafted by the Campaign, is largely the same as the 10-minute rule bill introduced by Labour MP Andrew Mackinlay in November 1998. The Bill itself can be read on the Stationery Office website.
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.
Individuals and organisations who have contributed significantly to greater openness are recognised in the Campaign for Freedom of Information’s annual Awards, presented on Monday evening, March 25, by the Rt Hon Tony Blair MP, leader of the Labour Party.
People who blow the whistle on crime, fraud and serious malpractice at work will have legal protection against reprisals under a new bill published today (13 February 1996).
The Right to Know Bill was a freedom of information bill drafted by the Campaign and introduced by Mark Fisher MP in 1993. The bill also proposed to reform the Official Secrets Act. The bill completed its committee stage but was then blocked by the Government at its report stage in July 1993 after a total of 21 hours debate in the Commons and in committee.This booklet was published at the time the Bill was before Parliament as part of the campaign to get a freedom of information act for Britain.
What is the Right to Know Bill?
It is a Bill which if passed would give you the legal right to information held by government departments, local councils, nationalised industries, NHS bodies and other public authorities. They could keep information secret only if they could prove that its disclosure would damage defence, law enforcement, personal privacy or other specified interests.
The Bill also reforms the Official Secrets Act – the law which makes it a crime to release some kinds of government information. The Bill creates a new defence – that disclosure was in the public interest – for someone prosecuted under this Act.
It would also make private companies publish more information in their annual reports, so you could see whether they were obeying laws on public safety, the environment, consumer protection, safety at work and discrimination. And it would give you the right to see your employment records.
The Bill was introduced by Mark Fisher, Labour MP for Stoke on Trent Central. It has the support of MPs from all parties – Conservative, Labour, Liberal Democrat, Scottish Nationalist, Plaid Cymru, and the Social Democratic and Labour Party. It was debated in the House of Commons on February 19, 1993.
What difference would the Right to Know Bill make to me?
First, it will let you see files held about you by public authorities and your employer. At the moment you can only see some kinds of files – most can be kept secret.
You can see files held about you on computer, thanks to the Data Protection Act. But usually you have no right to see information kept about you in written or typed form – for example, by your employer, the college you’re studying at, by local councils or government departments like the Department of Social Security.
You can see part of you medical records – but only the information added since November 1991. There is no right to see what your GP or hospital doctor wrote before this date.
(This has now changed following the introduction of the Code of Practice on Access to NHS Information in June 1995. For further details click here to read the Campaign’s briefing on the Code)
Someone may have made a mistake or written unfair or damaging comments about you – but you won’t know. The Right to Know Bill would let you see these records, correct mistakes and get compensation if you’d been damaged by errors.
Second, it would give you the right to know what rules authorities use in making decisions about you.
Officials may use internal rules and guidelines to help them decide whether you are entitled to benefits or grants, how much tax you should pay, or how they should deal with any complaint you might make. If you can’t see these rules you can’t know if you’re being treated fairly.
Authorities would have to publish these rules under the Bill. If they didn’t, and you suffered some disadvantage because you hadn’t seen them, you could go to court to get compensation or to have an unfavourable decision reversed.
Third, it would give you the right to know about things which directly affect your life – like safety, pollution, planning, food hygiene, transport and schools.
We can sometimes get more information about Britain under the American Freedom of Information Act than we can from our own government. For example, its easier to get information about the safety of British medicines, pesticides, food additives and cars from Washington than it is from Whitehall.
The US Freedom of Information Act can be used by anyone, even a British citizen living in the UK. Sometimes it is even possible to get information about Britain that ministers have refused to disclose to MPs in the House of Commons.
The Bill would let us get that information from our own government. You would be able to choose the safest product, make sure that the authorities were clamping down on hazards or insist that poor services were improved.
Fourth, you would be able to find out more about the real effects of government policies – on unemployment, the council tax, the crime rate, the health service, education and much more.
If policies aren’t working, the government is always liable to try and conceal the facts. Its easier for ministers to try and suppress the truth than to acknowledge and apologise for any error. The Bill would make it harder for them to get away with being dishonest.
Fifth, openness will improve the quality of decisions.
Secret decisions are more likely to be bad decisions. Keeping a decision secret means that only a handful of people are allowed to know what is going on. The public and independent experts aren’t allowed to contribute. So there is less chance that errors will be spotted. Bodies with vested interests can feed in slanted information, which no-one else can check. And if mistakes are made, the authority may react with even more secrecy, to make sure no-one finds out.
When decisions are taken openly, there is a greater chance that problems will be identified and dealt with. Unworkable ideas can be dropped, without loss of face, before the government has committed itself to them. And if the policy has been developed openly, and people’s views listened to, it is more likely to have public support than a policy drawn up in secret and forced through without consultation.
Finally, it would give you more power
If you are trying to protect yourself against an unfair decision, prevent an injustice, or bring about change of any kind – the one thing you must have is information. If you are kept in the dark, you will be powerless. If you have the facts you can make your voice known, force your MP or councillor to listen, argue your case with authority and have some chance of making those in power respond to your concerns.
But don’t we have too much information already?
A lot of information is published. But much of it is what the government wants us to have – information which explains government policy or supports a decision already taken. It is much more difficult to get information if it casts doubt on a decision.
Do other countries already have Right to Know laws?
Yes. Countries which have ‘freedom of information’ laws, as they’re usually called, include the USA, Australia, Canada, New Zealand, France, Sweden, Norway, Denmark, Holland, and Greece. Sweden has had a freedom of information law for more than 200 years!
What difference would the Right to Know Bill have made in the past?
In many of the recent major accidents, the authorities knew of safety problem beforehand – but the public didn’t.
For example, in 1985 more than 50 people died in a fire at Bradford City Football club. Later it was revealed that the council had written to the club months earlier demanding action on the ‘unacceptable’ hazard. But the public hadn’t known, because such correspondence is always confidential.
After the Marchionness river boat sank in the Thames in August 1989 it was revealed that the ship that had crashed into it – the Bowbelle – had been involved in 3 previous river accidents. The public hadn’t known about its dangerous record, because accident reports are confidential.
There were warnings about the hazard at Kings Cross underground station before the 1987 fire which killed 31 people. But these too were confidential and had not been acted on. The Fennell report into the fire found that “Many of the shortcomings…at King’s Cross…had in fact been identified before by the internal inquiries into escalator fires. They were also highlighted in reports by the fire brigade, police, and Railway Fire Prevention and Fire Safety Standards Committee.”
No-one knows whether these tragedies could have been avoided by greater openness. But it is possible that if the public had known about the problems, they would have demanded improvements – and something would have been done in time.
How would I get information under the Bill?
You would write to the authority which holds the records, describing the information that you want. It would have 30 days to release the records. It would have a longer period, 45 days, if the information had been supplied by a third party, to allow the third party to be consulted about any possibly exempt information.
You be given access either by being allowed to inspect the records or by having copies sent to you.
Would I have to pay for information?
You would pay only for copies that were sent to you, and postage. There would be no other charges.
How will I know what information an authority holds?
Every authority would have to produce an index to the records it holds, which you could look at.
The index wouldn’t have to identify every single file. But it would tell you what subjects the authority deals with, what kinds of records it has on them and what types of personal files it holds.
Authorities would also have to produce a leaflet telling you of your rights, explaining how to make an application and who to complain to if you are dissatisfied.
Would I be able to get information held on computer?
You would be entitled to copies of any record, regardless of how it is held. If the information was on computer you could get a print-out, or a copy of the computer disk. You could get copies of any video, tape, film or other type of record. And you would be entitled to printed or written records, including handwritten notes, correspondence or minutes of meetings.
If the authority doesn’t have the information would it have to get it for me?
No. The Bill only gives you the right to records that already exist.
However, if the authority knew that the records were held by another public body it would have to pass your application on to that body for it to deal with.
What could I do if an authority refuses to release information which the Bill says it should?
You would be able to complain to an independent Commissioner. He or she would have the power to look at the records and order the authority to release them.
Could the authority just ignore the order?
An order by the Commissioner would be like a court order. If it was unreasonable, the authority could appeal to the Tribunal. But if it simply refused to obey it would be in contempt of court. The person responsible could be fined or even imprisoned.
Won’t authorities find ways round the law – for example, by not writing sensitive things down?
They may try, but its very difficult to run even a tiny organisation – let alone a gigantic bureaucracy – without proper records. Government departments may spend months consulting each other over even the simplest decision. Officials wouldn’t be able to keep all the information they needed in their memories during this time: they would have to keep good records.
Could authorities destroy files to avoid having to release them?
An official who deliberately destroyed a record after someone had applied for it, would commit an offence under the Bill and could be prosecuted.
Why is the Bill enforced by a Commissioner and Tribunal and not in the courts?
First, because the courts are very expensive. If a public authority appealed at every stage it could cost tens of thousands of pounds, and take years, to fight a case up to the House of Lords. A complaint to the Commissioner would cost nothing and be quicker.
Second, a Commissioner and Tribunal who deal only with this subject and nothing else will produce a more informed and consistent set of rulings than the courts. Uncertain areas will be sorted out much more quickly and everyone will have a clearer idea of what has to be disclosed.
Who would appoint the Commissioner?
The Prime Minister, the leader of the Opposition and the chairman of a House of Commons select committee would have to agree on the nomination for Commissioner. The actual appointment would be made by the Queen, after being approved by both Houses of Parliament. The Commissioner could only be dismissed after a vote of both Houses of Parliament.
What information could authorities legitimately withhold?
Only information which the Bill specifically exempts from access. Personal information about individuals would be exempt. Information which would cause ‘significant damage’ to defence, international relations, the lawful work of the security services, law enforcement, the economy and the lawful commercial interests of an authority or private company would be exempt. But information about a public hazard could not be withheld, even if it was commercially sensitive. Exemptions also apply to information which might endanger life if disclosed; to certain types of civil service advice; and to information which an authority has prepared for use in legal proceedings. There are a number of other minor exemptions.
So the Bill wouldn’t produce total openness?
No. It acknowledges that there are legitimate grounds for keeping some information confidential. But it would lead to much greater openness; it would limit the grounds on which information could be withheld; and it would make it possible to challenge and overrule any unjustified secrecy.
Do the exemptions mean that all information about, for example, defence would be exempt?
No. Only information which the authority could show would cause “significant damage” to defence could be withheld.
Could the authority withhold the whole of a document if only part of it was exempt?
No. It would have to delete the exempt information, and release the rest.
Who decides if information is exempt?
Initially, the authority could refuse to release information which it thought was exempt. It would have to tell the applicant it was withholding information, and say which exemption was involved.
If the applicant was unhappy with the decision he or she could complain to the Commissioner. The Commissioner would have the power to look at the records and, if they were not exempt, order their disclosure. Either side could appeal to the Tribunal.
Won’t the Commissioner be overwhelmed by complaints?
Not according to overseas experience. The first stage of a complaint would be to ask the authority to review its own decision. This is what happens under the Australian Freedom of Information Act. In a third of cases, more information is then released. This may be because reviews are done by more senior officials, with greater authority to release information.
The Bill says that if the ‘internal review’ isn’t completed within 14 days, the applicant could complain to the Commissioner. The applicant could also complain if he or she was unhappy with the result of the internal review.
In 1990-91 there were some 25,000 freedom of information requests in Australia. But there were only 233 requests for internal review. Only 68 cases were taken to the tribunal which hears appeals.
The Australian act gives individuals the right to amend personal information about themselves if it is incomplete, incorrect, out of date or misleading. About a hundred requests for amendment were made in 1990-91, representing less than 0.5% of all applicants.
Could exempt information ever be disclosed?
Yes. If there was evidence of significant abuse of authority, negligence, injustice, danger to health or safety or unauthorised use of public funds. In these cases the Commissioner could order disclosure if, after weighing any possible benefit and damage, releasing the information was held to be in the public interest.
A minor abuse of authority would not justify disclosing highly sensitive information. But if the wrongdoing was serious this might call into question the normal presumption that the public interest requires the information to be secret. On the contrary, secrecy may prevent the problem being dealt with, or the necessary lessons being learnt, or an injured person obtaining justice. If the benefits of openness outweighed the possible drawbacks, the Commissioner could order disclosure.
Is it right that the Commissioner appointed under the Bill, rather than a minister, should have the final word on what should be disclosed?
No system of disclosure would enjoy public confidence if ministers were free to withhold information without challenge. Ministers can too easily get away with concealing information from parliament. Individual MPs have no rights to information. Parliament as a whole could in theory vote against the government if it refused to provide essential information. But this would involve MPs from the majority party voting against their government and risking an election – something too drastic normally to be contemplated.
There is nothing new in independent bodies with the power to compel ministers to disclose. The courts do it in cases of judicial review, or if the government has been sued. One option might be for the Commissioner to be a judge or a retired judge, so that the post was held by someone who had experience of making such decisions. The Parliamentary Commissioner (the “ombudsman”) can also force ministers to release information needed for an investigation. And ministers can be compelled to disclose records under the Data Protection Act – which gives people a right of access to personal files held about them on computer.
Would the Bill change the relations between ministers and civil servants?
No. There is a convention in parliament that the advice given by civil servants to ministers is not normally disclosed. The Bill accepts this convention. Policy advice given by civil servants would not be disclosed.
However, the factual information on which the advice is based would not be exempt. Any analysis, interpretation or evaluation of that information would be made public and so would any projections of future trends based on such information. Expert advice on a technical, legal, medical, statistical, scientific or other specialist subject would also be disclosed.
Where do the political parties stand on the Right to Know?
At the last election, in April 1992, both the Labour party and the Liberal Democrats promised freedom of information laws. In January 1992 a Liberal Democrat MP, Archy Kirkwood, introduced a Freedom of Information Bill in parliament. The government opposed it, and it didn’t become law. The following month Robin Corbett MP, a Labour front bench spokesman, published a Right to Information Bill which Labour said it would introduce if it won the election.
The government has not, so far, supported the principle of a freedom of information act, though many individual Conservative MPs do support such legislation.
However, the 1992 Conservative election manifesto promised to “be less secretive about the workings of government”. It said the Conservatives would try to allow greater access to personal files held by government; and would review those laws which prohibited government from disclosing information. However, it didn’t promise to give the public the right to this information.
The government’s approach has been to try and encourage departments to release more information. But it hasn’t yet said that it will require them to do so.
Why do we need a new law if the government has said that it wants to be more open?
Under the government’s approach, departments and authorities will be asked to release more information. But they would still be free to keep things secret if they choose. This couldn’t happen under the Right to Know Bill.
Under the government’s approach, ministers would be judge and jury in their own case. If a minister decided not to release information, the decision would be final. Under the Bill, if information was improperly refused you could complain to a Commissioner with power to order disclosure.
Under the government’s approach, ministers say they would release “useful”, “usable” and “well-prepared” information. This means ministers will decide what is useful for us to know. The Bill would give us the right to decide for ourselves what information to have.
Finally, a policy of being more open may not last. If the government’s priorities change, or ministers lose interest, it can be abandoned. This is what happened the last time government said it was going to be more open.
In 1977 the Labour government introduced what was known as the “Croham directive”, a policy named after Lord Croham the former head of the civil service. It said that the background papers to decisions would be published. In fact very few papers were released, and within 18 months the policy had been quietly dropped.
After his retirement, Lord Croham himself announced that he believed a freedom of information law was needed!
A freedom of information act would be permanent. It would be enforceable. And it would give us the information we want, not the information that the government wants us to have.
How much public support is there for the Right to Know?
A freedom of information (FOI) act would be the most popular of all the constitutional reforms being discussed. A MORI opinion poll commissioned by the Rowntree Reform Trust in January 1991 showed that:
77% of the public wanted a freedom of information act;
75% of Conservative voters supported it; as did 77% of Labour voters and 87% of Liberal Democrats;
75% of people who described themselves as “working class” backed FOI, compared to 83% of people who said they were “middle class”;
there was little difference between readers of the popular papers (77% in favour) and the quality press (81%). Even amongst people who said they were not interested in politics, 73% backed an FOI act.
How likely are people to use the Right to Know Bill if it became law?
The use that made of the Data Protection Act may give some idea of the likely demand. The Act allows people to see computerised records about themselves held by public and private bodies. In the first four months after it came into force in 1987 the Data Protection Registrar estimated that “tens of thousands” of requests had been made.
How would the Right to Know Bill affect parliament?
It would strengthen MPs’ rights. Individual MPs have no rights to information. They can ask questions, but cannot insist on getting answers. The Bill would give them, like everyone else, new rights to information. MPs could of course continue using the traditional methods of obtaining information – such as parliamentary questions and select committee inquiries.
Why does the Bill propose to reform the 1989 Official Secrets Act?
The 1989 Act makes it an offence to disclose official information about defence, security, international relations and law enforcement without permission. The Act has three main faults:
First, for some categories of information any disclosure – even one that does no harm – is an offence. A journalist or civil servant could be jailed without any evidence that the information released was harmful.
Second, there is no ‘public interest’ defence. Someone who is prosecuted cannot argue that the information benefitted the public, by exposing wrongdoing, negligence or corruption.
Third, there is no ‘prior publication’ defence. Someone can be convicted even if the information he or she released had been published before.
Under the Bill what would happen to someone who leaked classified secrets?
It would still be an offence to disclose them – provided the prosecution could show that ‘serious damage’ to the country’s interests was likely. This is a much stricter test than the 1989 Official Secrets Act has. Under the 1989 Act:
It could be an offence to leak information, on any subject, sent to this country in confidence by another government or an international body like the European Commission – even if the information itself wasn’t particularly sensitive. The prosecution would only have to show that other governments might be more reluctant to give us information in the future.
Any disclosure about a warrant which authorises telephone tapping (under the Interception of Communications Act 1985) or which allows the security services to break into premises (under the Security Service Act 1989) is an offence, even if it reveals that an innocent person was put under surveillance by mistake or that the information collected was abused – for example, by being sold to commercial bodies.
Any unauthorised disclosure by someone who has been a member of the security services, is an automatic offence. It doesn’t matter if the information is nothing to do with state secrets (for example, if its about security service pensions) or has already been made public or refers to things which happened more than 50 years ago and cannot now do harm. The judge in the Spycatcher trial, Mr Justice Scott, said such absolute protection “could not be achieved this side of the Iron Curtain”. He was wrong. It was introduced under the 1989 Official Secrets Act.
Under the Bill, no-one could be convicted for releasing information unless the prosecution showed that what he or she did was likely to cause serious damage.
What if the information showed that the government was doing something wrong?
Anyone prosecuted would be able to argue that disclosing the information was in the public interest. This would apply if the information showed that there was significant abuse of authority, negligence, danger to the public, misuse of public funds or other misconduct. The benefit of releasing the information would have to outweigh any possible harm. You wouldn’t be able to argue that some trivial misconduct justified releasing defence secrets.
Wouldn’t this encourage civil servants to leak information instead of using proper procedures to put things right?
No. Under the Bill, a civil servant would have to show that he or she had gone through the proper procedures but that they hadn’t worked. The only exception would be in very urgent circumstances, where there wasn’t time to use official channels.
An official whose real aim was to embarrass the government by leaking information – and who made no effort to try and get the problem put right first – wouldn’t be able to use the “public interest” defence.
This only applies to officials. Someone else, like a journalist, would not have to show that he or she had first gone through official channels.
When might the ‘public interest defence’ be needed?
In July 1985 the French security services blew up the Greenpeace ship ‘The Rainbow Warrior’, killing one crew member. If the British security services were planning something like this, and a security officer ‘blew the whistle’ to prevent it, that person could be jailed under the Official Secrets Act. The Bill would give that person the chance to argue that what he or she did was justified.
What difference would the Bill have made in the case of the three businessmen accused of exporting arms equipment to Iraq?
The Bill would have provided a public interest defence for any ‘whistleblower’ who tried to expose what was going on. Officials may have been deterred from doing so by the prospect of almost certain conviction and imprisonment if charged under the Official Secrets Act. By creating a public interest defence the Bill would make it harder for the government to cover up such wrongdoing.
Some of the documents which came out in the trial would have been available under the BIll. For example, those showing that the government had secretly relaxed the restrictions on exports to Iraq.
Other documents could only have been withheld if the government could show that they fell within the Bill’s exemptions. Most exemptions require proof that disclosure would cause “significant damage” – for example, to the “lawful activities of the security or intelligence services” or to the “lawful commercial activities” of the companies concerned. If the exports were unlawful, as was alleged, there would be no protection for commercial interests. And the government could not argue that any reference to the security services had to be withheld. Only those likely to cause significant damage could be protected.
Once there was evidence of serious wrongdoing – either over the export of the equipment or the treatment of the businessmen – even exempt information might be disclosed. The Commissioner could require this in the “public interest” under Clause 30 of the Bill if the benefits of disclosure outweighed any possible harm. During the trial the judge carried out a similar exercise balancing the ‘public interest’ in secrecy against the interests of ensuring a fair trial. Had there been no trial, the Commissioner could also have applied a public interest test to release the information.
How does the Bill apply to the private sector?
First, information about private companies held by a public authority would be accessible under the Bill, unless specifically exempt.
Second, the Bill creates a right of access to employment records which applies in the private as well as the public sector.
Third, the Bill would require companies to publish more information in their annual reports.
What kinds of records are covered by the right to see employment records?
The Bill would gives you access to records about you held by:
your current or former employer;
someone to whom you applied for a job – even if you didn’t get it;
references sent to a prospective employer about you;
records held by “employment reference agencies” – bodies which collect information about people in order to supply it to employers. The best known example is the ‘Economic League’ – which supplies employers with information about people’s political activities.
You would have the right to see and get copies of your employment records, and correct inaccurate information on them. If you had been damaged by inaccurate information you could go to court to get compensation from the holder of the record.
What information would companies have to publish in their annual reports?
The Bill amends the Companies Act 1985 to require companies which employ more than 50 people to publish in their annual reports:
how often enforcement action had been successfully taken against the company for breaching laws on the environment, consumer protection, health and safety at work, public safety, equal pay and discrimination;
brief details of what was involved in each case;
the incidence of serious injuries and fatal accidents in the workplace;
the total amount of compensation paid to people injured by the company’s products or activities and any associated legal costs. The company would also have to make details of individual payments available on request – though the identity of the injured person would not be disclosed without that person’s consent;
certain information about the company’s pension funds would also be published.
Is any of this information publicly available now?
Most of it is not. Usually, only what takes place in open court – prosecutions and orders to pay compensation – are publicly reported. Even this information is difficult to find and is scattered across different local newspapers in different parts of the country. Other information, such as the notices served when a breach of the law is found, accident rates, and the vast number of “out of court” compensation payments are generally confidential.
The Bill would provide a single easily accessible record of a company’s compliance with the laws in these areas.
How would making this information public help?
Companies sometimes do refer to these issues in their annual reports, but usually only in general and misleading terms. Surveys have shown that companies which have been prosecuted for fatal accidents or serious pollution usually did not mention this in their annual report. Instead they published self-congratulatory statements saying how much they cared about safety and the environment.
The Bill would make annual reports more honest. Companies which were doing badly would have to acknowledge the fact.
Because the information would be published in the directors’ report, the directors would have to take a personal interest. They might be questioned by journalists and shareholders when the annual report came out and would be embarrassed by a bad record. Getting senior management personally involved is an essential step towards making companies take these issues seriously.
Shareholders would realise the financial implications of not meeting legal standards. For example, in 1990 some companies were fined up to a million pounds for a single safety or pollution offence – yet made no reference to these penalties in their annual reports.
Shareholders are increasingly concerned about such issues – either because of their own ethical concerns, or because they know that a company which cannot meet environmental and other standards will find it difficult to be profitable in the long term. The Bill would lead to greater shareholder and public pressure for improvements.
What happens under other countries’ freedom of information laws?
Most requests come from individuals asking to see their own files. Consumer, environmental and public interest groups use the laws to press government to enforce standards or improve weak laws. Investigative journalists, historians, authors, professional bodies and politicians also use the Act.
In Australia, some 25,000 freedom of information requests were made in 1990-91. About 12,000 access to information requests were handled in Canada in the same year and a further 51,000 requests were made for personal files under Canada’s Privacy Act.
Do people get the information they ask for?
In Australia, 74 per cent of all requests in 1990-91 were granted in full. In 22 per cent of cases, some information was disclosed and some withheld. Only 4 per cent of requests were denied altogether. Seventy per cent of requests were dealt with within the 30-day time limit allowed under the Act.
What kind of information is released?
In his 1991-92 annual report, the Information Commissioner of Canada – who deals with complaints under Canada’s Access to Information Act – wrote:
“Here is an unscientific, random catalogue of a few revelations attributed to the efficacy of the Access to Information Act:
Cabinet instructions to the Royal Canadian Mounted Police on obtaining information about separatist activity in Quebec; a Revenue Canada audit discussing difficulties of tax collectors under a new regime of being gentle with taxpayers; memos and letters dealing with the admission to Canada of the former Iraqi ambassador Mohammed Al-Mashat; 17 background studies on the impact of free trade; Employment and immigration figures of money spent on job creation in the Prime Minister’s riding [constituency]; an External affairs report on the percentage of Canadian wine served at 69 diplomatic posts (17 per cent). Significant, or trivial, the stories come out routinely day by day… Perhaps some of this information would have been released without a formal request. But can anyone doubt that, without the Access to Information Act, much of what now goes out would never have seen the light of day?”
Sometimes ministers have been forced to resign after freedom of information act disclosures. A minister in the Canadian government resigned after documents were released showing that she had spent five days in France at public expense in order to attend a one-hour meeting. In Australia, a minister was forced to resign after disclosures showed he had misled parliament about the way contracts under his control had been awarded.
Is it true that businesses use freedom of information to try and spy on their competitors?
That is what some critics of freedom of information laws claim. But examples of companies doing this are difficult to find. Businesses do use freedom of information laws to try and protect themselves from unfair treatment by government regulatory bodies. They use the laws to check that government inspectors are not treating competitors more favourably than themselves when enforcing standards. They use them to learn about new government proposals that may affect them; and to look for opportunities to bid for government contracts.
The Canadian Information Commissioner has commented: “A business enquirer, like any other, is entitled to receive and to use such information for any purpose, including self interest…there can also be public interest in business users acquiring this information. Pricing for government contracts may be more competitive; business checking on business can also help consumers.” [Annual Report, 1991-92]
Do the governments in these countries get any benefit from their freedom of information laws?
Some government bodies resent the extra work involved in processing requests. But others see positive benefits. In 1986 the Australian Attorney General reported on a survey of agency views on the legislation.
Forty six authorities said that they had “greater awareness of the need for objectivity and accountability in dealing with the public” as a result of the act; 38 referred to “improved quality of decision-making”. Other benefits were “improved communication and understanding between agency and clients” (33 agencies); “improved efficiency of records management” (27) and “greater public awareness of the role of the agency” (25).
The Australian Department of Social Security reported that the act had “served to lessen mistrust and dissatisfaction with decision-making and improved the quality of decision-making and its documentation”. It had also “expanded the Department’s effective review mechanisms by enabling clients who are adversely affected by a decision to see the full facts of the decision before deciding to seek a review. In some areas this has reduced the numbers of appeals. In others it has assisted clients to better prepare and present appeals and thereby has expedited the review process.”
How much do these freedom of information laws cost?
The Australian Freedom of Information Act cost £4.7 million in 1990-91. The cost of the Canadian legislation in the same year was around £11.5 million (which includes the costs of the offices of the Information and Privacy Commissioners). Canada’s Information Commissioner suggests that the official figure overestimates the costs and that the true figure may be substantially less.
Do these laws ever save money?
In the USA the Freedom of Information Act has been used to expose fraudulent claims being made under the “Medicaid” health insurance scheme by private nursing homes; it has shown that false data was supplied to government agencies by contractors to support an inflated price for their products; and it revealed losses of $14 million by a government agency because of bad loans resulting from the interventions of elected officials.
Disclosures under the Australian Freedom of Information (FOI) Act in 1986 led to the cancellation of an £266 million project. The Australian army had proposed to buy a 2.5 million hectare site in New South Wales for use as a tank training ground. Internal documents obtained by local residents showed that the site was too foggy and mountainous for its purpose. The Australian Senate Standing Committee on Legal and Constitutional Affairs later reported that:
“The material obtained under the FOI Act showed that the proposed acquisition would not have met the Army’s requirements. Further, the material showed that the Department of Defence should have abandoned the proposed acquisition at a much earlier stage…It is a reasonable inference that the proposals might have gone ahead if groups opposing it had not gained access, through FOI, to documents with which to convincingly demonstrate the proposal’s inadequacy.”
The resulting saving was nearly 40 times the annual cost of the freedom of information legislation.