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Questions and Answers about The Right to Know Bill

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.

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A Guide to the Right to Know Bill

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 guide refers to Draft 1.0 of the bill, dated 7.7.92 which is subject to consultation and revision

INTRODUCTION

The Bill has four main sections. These:
create a right of access to official records held by public authorities
reform the Official Secrets Act 1989
create a right of access to employment records
require companies to publish more information in their annual reports.

1. ACCESS TO OFFICIAL RECORDS

Introduction

This Part of the bill is identical to the main provisions of the Right to Information Bill, introduced by Robin Corbett MP and Roy Hattersley MP in February 1992 and to the Freedom of Information Bill introduced by Archy Kirkwood MP in January 1992.

It creates a general public right of access to all official records held by public authorities. Information can only be withheld if it falls into one of the bill’s exempt categories. In certain circumstances even exempt information may be disclosed in the public interest. The bill would be enforced by a Commissioner and Tribunal with powers to order disclosure.

Scope of the bill

The bill applies to “public authorities” which as defined include government departments, nationalised industries, executive agencies, government advisory committees, NHS bodies including health authorities and trusts, local authorities, and any other body which receives at least half its funds from public funds or to whom ministers appoint one or more members.

Records subject to the bill

The bill applies to information recorded in any form, including non-paper records. Records created before the bill comes into force would be accessible, though with some restriction during the bill’s first year. Information which authorities have obtained from third parties such as companies would be accessible.

Applying for access

Applications would be in writing, identifying the records wanted or providing enough information to enable the authority, with reasonable effort, to identify the relevant records. An authority would be under a duty to help people make applications and also to make available (a) a code of guidance to help applicants (b) an index describing the kinds of records it holds and (c) an index of records it has released to previous requesters. Once a record has been requested an authority may not destroy it. An official who knowingly does so would commit an offence.

Giving access

Access would have to be given within 30 days of an application. Where the record contains third party information the period is extended to 45 days to allow the third party to be notified and make representations. Applicants would be able to inspect records or obtain photocopies. Fees could be charged only for photocopying (limited to £1 per 10 copies) and postage. Copies of or print-outs from non-paper records such as computer discs could also be obtained.

Correction of inaccurate information

Authorities would be required to correct inaccurate information. Where the inaccuracy could not be proven, or where there was a difference of opinion, the authority would have to indicate on the record that the information was disputed. “Inaccurate” is defined as incorrect, incomplete, misleading or not relevant to the purpose for which the record is held.

Compensation for damage

Anyone damaged by inaccurate information would be entitled to compensation for the damage and any associated distress, unless the authority could show that it had taken reasonable care to ensure accuracy.

Exemptions

An authority would not be required to give access to exempt information. But it could not withhold the whole of a record if only part was exempt. Applicants would have to be told that information had been withheld, the specific exemption involved, the reasons it was thought to apply, and of the procedures for challenging the decision. The exemptions apply to:

(1) Defence, security, international relations

Information whose disclosure would be likely to cause significant damage to defence, the work of the security and intelligence services or international relations.

(2) Law enforcement

Information whose disclosure would be likely to (a) result in the commission of an offence (b) impede significantly the prevention or detection of offences or the apprehension or prosecution of offenders by lawful means (c) facilitate an escape from legal custody (d) prejudice the fair trial of a person against whom proceedings have been brought or (e) endanger the safety or life of any person.

(3) Legal professional privilege

Communications between an authority and its legal advisers about actual or possible litigation involving the authority are exempt.

(4) Policy advice

The advice, opinions or recommendations given by an official or a Minister for the purpose of policy formation are exempt. However, this exemption does not protect –

* factual information; its analysis, interpretation or evaluation; or projections based on it

* expert advice on a scientific, technical, medical, financial, statistical, legal or other matter

* guidelines used in taking decisions about the rights of persons; or the actual decisions and reasons for them

* information about the personal affairs of the applicant.

(5) Personal privacy

Information whose disclosure would involve the invasion of the privacy of an individual is exempt. Information about the affairs of someone who has died is also exempt unless (a) disclosure is in the public interest because it tends to indicate that a public authority contributed to the death, or (b) the next of kin has consented to disclosure. A deceased’s medical records would not be disclosed, even to the next of kin, unless relevant to a legal claim.

Information about disciplinary proceedings against an official would be accessible if (a) they related to a matter of public interest or (b) they related to a complaint by an individual, in which case they would be available to that individual. In other cases disciplinary proceedings would be exempt.

(6) Health records

Information on an applicant’s health record could be withheld if disclosure would be likely to cause serious harm to the applicant’s health. This is in line with the Access to Health Records Act 1990 and the Data Protection Act 1984.

(7) Economic and commercial affairs

Information is exempt if disclosure would be likely to cause significant damage to –

* the economy, by prematurely revealing any change in taxation, exchange or interest rates or other instruments of economic management;

* the financial interests of the authority, by giving unreasonable advantage to any person negotiating a contract with the authority;

* the authority’s position in pay negotiations with its employees, by revealing information prepared for those negotiations;

* the lawful commercial activities of the authority, by revealing information to a competitor.

The last exemption does not apply if the damage to the authority results from consumers exercising more informed choice about the goods or services they buy; and it does not protect information about any public safety hazard;

(8) Competitive position of a third party

Information obtained by an authority in confidence from a third party is exempt if disclosure would, by revealing information to a competitor, be likely to cause significant damage to the lawful commercial or professional activities of the third party. This exemption does not apply if the damage to the third party results from consumers exercising more informed choice; and it does not allow information about public safety hazards to be withheld.

(9) Authority’s ability to obtain information

A limited exemption protects certain information which is supplied voluntarily to an authority if disclosure would cause significant damage to the authority’s work by causing the supply of that information to dry up in future. The exemption has a narrow scope and does not apply if (a) the authority has the legal or contractual power to demand the information, (b) it can obtain it from other sources (c) the information is submitted in the hope of obtaining some advantage for the submitter or of dissuading the authority from taking some adverse action against it (d) the information is submitted in response to a consultation by the authority about proposed changes in policy or legislation (e) it is an employment or other reference.

Substantial and unreasonable interference with the authority’s work

Applicants would be able to make broad requests for all records on a particular subject. But if such a request involved a substantial number or volume of records (eg “all records relating to environmental pollution”), and locating them all would interfere substantially and unreasonably with the authority’s work, the request can be refused. However:

* the authority can only refuse if it has taken reasonable steps to help the applicant make a new application which it will be able to grant;

* the authority must report every refusal under this clause to the Commissioner, who will be able to monitor any unreasonable behaviour.

Broadcasting materials

Information or recordings which were obtained or produced in order to be broadcast by the BBC (the only broadcasting body falling with the definition of a ‘public authority’) are not subject to the bill. Other types of information – eg about administration – would be accessible.

Disclosure in the public interest

Even exempt information may be disclosed in the public interest if there is reasonable evidence of significant (a) abuse of authority or official negligence (b) injustice to an individual; (c) danger to health or safety (d) unauthorised use of public funds.

In such circumstances it is no longer self-evident that the public interest is best served by continuing to keep exempt information confidential. The Commissioner would be able to consider whether disclosure was justified in the public interest, taking account of all the circumstances, including any damage or benefit that might result, and could order disclosure. Disclosure would not automatically follow, particularly if the abuse was minor and the potential damage from disclosure significant.

Notice to third parties

Before an authority gives access to third party information it must notify the individual or company from whom the information was obtained. If the third party considered the information was exempt it could appeal against the proposed disclosure to the Commissioner or Tribunal.

Notification of benefits

The bill contains a special procedure to help non-commercial organisations get in touch with particular classes of individuals to notify them of benefits they can claim or invite them to take part in research likely to help them. Their names and addresses could not be disclosed under the bill, as this would breach their privacy. Instead the authority would have to send a notice from the organisation to the individuals concerned, provided this did not interfere substantially and unreasonably with he authority’s work.

Decision-making guidelines

An authority would have to make available any guidelines it uses in making decisions affecting the rights or obligations of individuals, such as the internal rules for determining eligibility for benefits or liability for tax. If an authority failed to do so and an individual suffered some disadvantage as a result he or she would be entitled to compensation and to have an unfavourable decision set aside.

Appeals

The bill would be enforced by a Commissioner and Tribunal similar to the Data Protection Registrar and Tribunal. These would provide a cheaper and less intimidating remedy than the courts and permit a consistent body of case law to be built up more quickly.

The first stage in challenging a decision would be to ask the authority itself to conduct an internal review of its decision. Experience in Australia is that such internal review leads to more information being released in about a third of all cases, probably because more senior officials are involved. If an authority failed to complete the review within 14 days the applicant would be free to complain to the Commissioner.

The Commissioner

The Commissioner would have the power to examine any record including one containing exempt information and make enforceable orders requiring authorities to comply with the bill. Failure to comply, or obstruction of an investigation, could be referred to a court and dealt with by it as contempt of court.

The Tribunal

Appeals against the Commissioner’s decisions could be made to a tribunal, whose chairman and deputy chairman would be lawyers.

Each party to an appeal would normally pay its own costs. But the Tribunal may order the authority to pay the applicant’s costs where an appeal has raised an important issue of principle. Any party which had been responsible for frivolous, vexatious, improper or manifestly unreasonable action or delay could be ordered to pay the costs of other parties.

Defamation etc

An authority or its employees could not be sued for defamation, breach of confidence or breach of copyright for disclosing information under the bill. However, a person who obtains a record under the bill and publishes it would have no special protection against action for defamation.

Reprinting an official record released under the bill would not infringe Crown copyright. But a third party who supplied a document to an authority retains copyright even if it is released under the bill. This prevents an applicant commercially exploiting someone else’s material. The normal “fair dealing” defence under copyright law would allow the applicant to publish reasonable extracts or the whole document if it is short, for the purpose of criticising it or reporting on current events.

An official who mistakenly disclosed information in good faith in the belief it was required under the bill would not commit an offence under the Official Secrets Act or any other statute.

2. OFFICIAL SECRETS

This Part of the bill replaces the 1989 Official Secrets Act with new measures. The ‘absolute’ offences of the 1989 Act would be abolished: the prosecution would have to show that harm was likely to result from a disclosure. The bill also creates new defences of prior publication and disclosure in the public interest.

Protected material

The bill protects information, documents or articles relating to defence, international relations or the lawful activities of the security and intelligence services whose unauthorised disclosure would be likely to cause serious damage to the UK’s interests. Information is also protected if its unauthorised disclosure would be likely to result in the commission of an indictable offence, create a serious obstacle to the prevention or detection of such offences or the apprehension or prosecution of suspected offenders, or cause serious danger to safety or life.

Anyone who intentionally or recklessly discloses protected material, knowing that it is protected, commits an offence. The maximum penalty remains as at present, 2 years imprisonment and/or a fine.

Prior publication defence

It would be a defence to show that the protected material had previously been made public, whether in the UK or elsewhere.

Public interest defence

It would be a defence to show that:

* there was reasonable evidence that the disclosed material related to abuse of authority, official negligence, injustice to an individual, danger to health or safety, unauthorised use of public funds, or other misconduct; and

* in the circumstances the disclosure was justified in the public interest having regard both to any benefit and any damage that was likely to result.

The fact that there was abuse of authority, etc would not in itself be a defence – it is only in these circumstances that the defence could be argued. The defence involves weighing the benefit against the damage. Exposing a minor abuse of authority would not justify disclosing information likely to cause serious damage: the benefit would have to outweigh the potential damage.

In the case of a civil servant or government contractor, the public interest defence would only be available if the person had previously taken reasonable steps to comply with established procedures for drawing the abuse etc to the attention of the appropriate authorities, without effect. The only exception would be if the matter was of such urgency that these steps could not reasonably be expected to be effective.

3. ACCESS TO EMPLOYMENT RECORDS

The bill would give individuals a right of access to their own employment records.

Definition of “employment record”

The right of access applies to a record held by an employer about an individual who is or has been an employee or who has applied for employment. It also applies to records of “employment reference agencies”, that is bodies who collect information about individuals in order to supply it to employers. The best known example is the Economic League.

Applications

An individual would have to apply for access in writing to the holder of the record. Once an application has been received the holder of the record would be prohibited from destroying the record, or deleting information on it – failure to comply would be an offence. Access would have to be given within 30 days. Any unintelligible terms on the record would have to be explained.

The employer would have to state whether it had obtained information about the applicant from an employment reference agency and if so give the agency’s name, the date, and inform the applicant that he or she can apply directly to the agency for access to any record which it holds.

Exempt information

Information can be withheld if its disclosure would be likely to cause significant damage to defence, the lawful activities of the security or intelligence services, international relations or would interfere with law enforcement, the privacy of others, or – in the case of health information – if disclosure would cause serious harm to the health of the applicant. The precise exemptions are identical to the corresponding exemptions under Part 1 of the bill.

Corrections and compensation

There is a right to correct inaccurate information and to be compensated for damage or distress resulting from its use. These provisions are identical to the corresponding clauses of Part 1 above.

Enforcement

This Part of the bill would be enforced in the courts.

4. DISCLOSURE OF INFORMATION BY COMPANIES

The bill would amend the Companies Act 1985, to require the disclosure of additional information in companies’ annual reports. This Part is an expanded version of the Corporate Safety & Environmental Information Bill introduced by Jeff Rooker MP in December 1991.

The bill applies to companies with 50 or more employees: these are companies defined as ‘medium’ and ‘large’ under the Companies Acts. (Annual reports of small companies are in any case unlikely to have significant circulation.)

The bill requires companies to make public various types of information which will already be known to them – they would not have to collect new information. Annual reports would have to show:

* The numbers of occasions on which enforcement action was taken against the company under various laws.

These are listed in the bill and include legislation dealing with consumer protection, public safety, environmental protection, health and safety at work, racial and sexual discrimination, equal pay and unfair dismissal. Any formal notices, orders or injunctions under any of the specified powers would have to be disclosed, unless they had been set aside on appeal. Convictions for offences under such legislation would also have to be specified.

* The number of deaths and serious injuries to employees during the year.

These would be expressed as the ‘incidence rate’ – the number of injuries per 100,000 employees. This would permit the company’s performance to be compared with the industry average, and its own record in previous years.

* The total amount of compensation paid to persons injured by the company’s activities or products, and the total of any associated legal costs

Details of any specific payments would not be required in the annual report but would have to be made available on request. No information about identifiable individuals could be released without their consent or their next of kin’s.

* Pension funds

The bill will require disclosure of certain information about company pension funds, where this can be done within the scope of the bill (ie by amendment to the Companies Act rather than the specific legislation on pension funds).

(The provisions on pension funds are currently being drafted: suggestions for what information should be required would be welcome.)

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Why Britain needs a Freedom of Information Act

This article was published in early 1993 before the debate on
Mark Fisher MP’s Right to Know Bill

In some countries the citizen who asks for information is merely exercising a legal right. In Britain, the same request may be treated as an impertinence. A new private member’s bill, introduced by Mark Fisher MP would change that. Britain would have a freedom of information act if the Right to Know Bill due for second reading in the Commons on February 19 1993, becomes law.

The secrecy over safety problems illustrates why the law is needed. We have no right to know the results of safety tests on new cars, safety assessments on the channel tunnel, or the results of fire inspections at British Rail stations .

It is often possible to obtain more information about Britain under the American Freedom of Information (FOI) Act than from Whitehall. When a cruise liner like the QE2 sails from Southampton to New York its kitchens are inspected at both ports. The British report is secret the US findings freely available. Information on the safety of British food additives, medicines, faults on British cars or hygiene conditions at British poultry plants is also available from Washington – but largely confidential here.

In many of the recent major accidents the authorities – but not the public – knew of the safety problem beforehand. The official report into the fire which killed 31 people at King’s Cross underground station in 1987 found that “Many of the shortcomings…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.” Greater openness offers at the least the possibility that the public would learn about such deficiencies and demand improvements.

What accounts for our secretive culture? In part it is simply administrative convenience: releasing information involves more work than leaving it in the files. But secrecy often has a more specific cause. It protects decision-makers from challenge, shields policies from criticism, conceals mistakes or the arbitrary exercise of power, allows government to pursue objectives which may not enjoy public support and avoids pressure for action which the government wishes to resist.

The nature of our politics encourages this. Government is under constant scrutiny from an opposition whose full time job is to expose ministers’ failings. Ministers in turn devote themselves to denying ammunition to their critics. The frank admission that a mistake has been made or that a policy has failed has become almost unthinkable. In this corrupting atmosphere, concealing the evidence is seen not as dishonesty but as a necessary tool of effective government.

Openness may be difficult, but it has its advantages. Exposing proposals to early scrutiny allows government to draw on expertise beyond Whitehall. There is a greater chance that weak proposals will be questioned and amended – or even thrown out – if the discussion takes place before ministers have finally committed themselves, and can change their minds without loss of face. The fact that proposals have been developed openly may also lead to greater public support.

But a government which hastily commits itself to ill-thought out proposals – to implement an untested doctrine, boost the popularity of a floundering minister, or respond to the latest tabloid outcry – will not easily tolerate scrutiny. The policies may generate still more secrecy, to prevent the lack of analysis, failure to anticipate problems or damaging results becoming apparent.

A classic example was the government’s plan, announced in October 1992, to close 31 coal pits without warning or consultation, making 30,000 miners redundant. The public outrage which followed forced the government into a series of embarrassing retreats. This culminated in a high court ruling that even the revised, less drastic, closure plan was unlawful because British Coal had failed to meet its statutory duty to consult its trade unions.

It was later revealed that the government had commissioned a report from a firm of American mining engineers which reportedly concluded that most of the condemned pits were profitable and able to achieve a further 30 per cent improvement in productivity. Their coal would then be cheaper than the gas and nuclear alternatives favoured by ministers entirely undermining the justification for the closure programme. In January 1993 the government published a different report, by the same company which reviewed many of the same pits but reached markedly more pessimistic conclusions. The original report remains secret.

The arms to Iraq scandal produced an equally disturbing scenario. Documents released during court proceedings showed that, just before the invasion of Kuwait, ministers had relaxed the guidelines on exports of arms equipment to Iraq. But instead of acknowledging and defending the new policy, it was deliberately kept secret. Parliament was told that the original guidelines, drawn up in 1985, had continued to be applied.

Three former executives of the Matrix Churchill company were prosecuted for exporting machine tools used to manufacture armaments. Yet official documents showed that the company had disclosed the military implications to the government and had been encouraged to carry on – and that one defendant was actually working for the intelligence services.

Ministers, senior officials and government lawyers all saw these papers. But instead of stopping the prosecution, ministers signed ‘public interest immunity’ certificates to suppress the evidence. The suggestion that they had no alternative but to do so has been widely challenged.

Perhaps the most shocking aspect is that the court was told that the documents contained nothing which could support the defence case a demonstrable falsehood which could have led to the men’s imprisonment. The implication is that the government used its control of official information to protect itself from embarrassment – regardless of the implications for the defendants’ liberty.

Skoal Bandit or Oral Snuff?

A final example shows how counterproductive secrecy can be. In 1985 an American firm opened a factory in Scotland making a tobacco product known as ‘Skoal Bandits’ or ‘oral snuff’. The government encouraged the venture with an investment grant of nearly £200,000. But the following year an official committee concluded that the product caused cancer and should be banned. Yet no-one told the manufacturer which continued to invest in the new site. It only learnt of the decision 28 months later, when the Department of Health announced the proposed ban. Even then it was not allowed to see the scientific committee’s report. The company challenged the ban by judicial review, and the ban was set aside purely because of the government’s lack of candour. Lord Justice Taylor commented: “all they were told was the conclusion – namely that a ban should be introduced – not the grounds for reaching it…One cannot help feeling that the denial…was due to an in built reluctance to give reasons or disclose advice lest it give opponents fuel for argument”.

“There is no way that I am interested in having umpteen organisations looking into every last detail of all our papers… No, I will not show you the report. I see no reason to show the BBC the report. You know the contents of the report. If you don’t believe me, that is tough luck.”

Social Security minister Anne Widdecombe, telling a BBC Radio programme why she would not release a report which led to a hostel for the homeless being closed at two weeks notice in March 1991.

Mark Fisher’s Bill

The Right to Know Bill would create a right of access to central and local government records. Only information specifically exempted from access could be withheld. Exemptions apply where disclosure would cause “significant damage” to defence, international relations, law enforcement, the economy, the lawful activities of the security services or the lawful commercial interests of an authority or private company. However, even commercially sensitive information could not be withheld if it concerned a serious public hazard. Information affecting personal privacy would be exempt. So would the policy advice offered by officials – but not the factual information on which it was based, the analysis or interpretation of factual information or projections based on it. “Expert advice” on scientific, medical, legal, financial or other specialist issues would also be disclosable. There are a number of other exemptions.

The Bill would be enforced by an independent Commissioner and Tribunal, with power to examine documents and order disclosure. In part, this follows the model of the Data Protection Registrar and Tribunal. It avoids the cost and delay of the courts – and would enable a more rapid development of a consistent body of case law.

In certain circumstances, even exempt information could be disclosed – if there had been significant abuse of authority, negligence, danger to the public, injustice or unauthorised use of public funds. In these circumstances the Commissioner and Tribunal would be able to order disclosure if the public interest in openness outweighed any possible harm. The courts already apply such public interest balancing tests – for example, under the law of confidence or in deciding whether to accept government claims for “public interest immunity”.

The Bill would also repeal the 1989 Official Secrets Act. Information likely to cause “serious damage” to interests such as defence would still be protected. But there would be a new public interest defence. Civil servants would first have to show that they had tried to deal with any wrongdoing under established procedures.

The Bill would also allow access to employment records. And it would require companies to publish more information in their annual reports, including details of their compliance with laws on the environment, health and safety, consumer protection and discrimination.

“I have to say I have not the slightest intention of giving you any information why I reached the decision I did… To sum up, I would please ask in future you direct your inquiries to me personally but I can assure you will certainly not receive any answers.”

The Chief Constable of Merseyside replying to the chairman of the Police Complaints Authority, who had asked why disciplinary proceedings against two police officers involved in an alleged assault had been dropped.

Mark Fisher’s Bill is backed by more than 50 national organisations including leading consumer, environmental, professional and church bodies and by a campaign of local lobbying activities co-ordinated by Charter 88.

The Bill, which has all-party support, may not be easy for the government to oppose. While the opposition parties have long been committed to freedom of information legislation, there is growing Conservative support too. A MORI poll for the Rowntree Reform Trust in January 1991 found that 75 % of Conservative voters supported FOI legislation. In 1990 a report by the Institute of Economic Affairs called for reforms to tackle ‘government traditions of secrecy’; and in December 1992, FOI legislation was called for in a report from another conservative think tank, the European Policy Forum.

The government has responded with the commitment in its 1992 election manifesto “to be less secretive about the workings of government”. A new “open government initiative ” has been announced, under the charge of a cabinet minister, William Waldegrave. It has led to the release of some information. But progress has been limited, sometimes appearing only in response to external pressure.

The approach is to encourage departments to release more information, but not require it. The government says that information will be withheld only where there are “pressing public interest” reasons for secrecy – but there is no mechanism to secure this. Ministers still decide what to release, remaining free to withhold information, without challenge, wherever disclosure would be inconvenient or embarrassing.

Even the policy itself can be abandoned – if it proves unpopular in Whitehall or ministers’ priorities change. This is what happened to the last openness initiative. The “Croham” directive, named after Lord Croham the former head of the civil service, was introduced by the Labour government in 1977, and promised the publication of background papers to decisions.

Few were published and within 18 months the policy had been quietly dropped. Lord Croham himself later came out in favour of a freedom of information act.

Until recently, the official line was that such legislation would undermine parliament by allowing some body other than the House of Commons to compel ministers to release information . The argument has never been particularly convincing. As one commentator (as it happens, Mr Waldegrave himself, before becoming an MP) has observed, the power of the Commons is “exercised almost at the whim of those who control the majority” who “can be whipped into line on virtually any measure”. Mr Waldegrave has recently said that he has no ideological objection to a freedom of information act a notable shift in official emphasis, which may leave the door open for government support at some later stage, though there is no sign of it at present.

The government will find it hard to object to the principle of FOI, since it has recently introduced, in effect, an environmental freedom of information act.

The Environmental Information Regulations 1992, which came into force on 31 December 1992, are the result of a European directive but one which the government claims to have played a leading role in promoting. They give the public a legal right to any environmental information held by public bodies. Only information which the regulations define as “confidential” can be withheld. No specific enforcement mechanism is provided, but an unsupportable failure to disclose could be challenged by judicial review.

The new right is flawed by the sweeping nature of many exemptions. For example, information which third parties including polluters – have supplied ‘voluntarily’ and which the authority has no legal power to demand, cannot be disclosed without the supplier’s consent. An official has acknowledged that as much as 90 per cent of the government’s environmental information could be withheld under this provision alone. And any information about international relations can be withheld – a major loophole now that environmental issues are increasingly dealt with by international treaty or European directive.

But the principle of the legislation is significant. If ministers can accept the case for a broad and (albeit weakly) enforceable right of access to environmental information, why not a similar right for information about, say, safety, public health, consumer protection, education, the NHS, social services – and everything else?

SECRECY… Protects decision makers from challenge, shields policies from criticism, conceals mistakes or the arbitrary exercise of power, allows government to pursue objectives which may not enjoy public support and avoids pressure for action which the government wishes to resist.

Overseas experience demonstrates that such legislation is feasible, and affordable. FOI laws now exist not only in the USA but in Australia, Canada, New Zealand, France, Denmark, Holland, Norway, Sweden and Greece. A potential objection is that disclosure may affect the frankness of civil service advice to ministers. But according to a former Home Office official who has studied the legislation in the three countries – Australia, Canada and New Zealand – with Westminster style parliaments: “In all three countries fears were widely expressed that advice would no longer be put in writing, or that it would be heavily diluted. I looked hard for evidence of this. There is still a belief that it happens, but when I pressed people they could never come up with examples. Of the two permanent secretaries I interviewed in Australia, both said that they had noticed no reduction in the frankness of official advice which flowed across their desk on its way up to the minister. One of them had certainly feared this would happen; but his fears had not been borne out in practice.”

What of the cost? In Australia, some 25,000 freedom of information requests were made in 1990-91 at a cost of around £4.7 million. There were 63,000 requests under the Canadian freedom of information legislation in the same year, costing £11.5 million. Canada’s Information Commissioner has suggested that this figure may substantially overestimate the true costs. Moreover, freedom of information may actually save money. The American freedom of information act has, on numerous occasions, exposed wasteful government spending. Disclosures under the Australian act in 1986 led to the cancellation of a £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 demonstrated that the site was unsuitable: much of the year it was too foggy to be used, and large areas were too mountainous for its purpose. The resulting saving was nearly 40 times the then annual cost of the freedom of information legislation.

The case also illustrates the importance of freedom of information to the individual. The one thing people need in trying to protect themselves-against an overpowering bureaucracy, correct an injustice or bring about change of any kind is information. Without it they are powerless. With it, they can argue their case on something approaching equal terms.

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