GOVERNMENT RESPONSE TO THE THIRD REPORT FROM THE SELECT COMMITTEE ON PUBLIC ADMINISTRATION (SESSION 1997-98) ON YOUR RIGHT TO KNOW: THE GOVERNMENT'S PROPOSALS FOR A FREEDOM OF INFORMATION ACT

1. We welcome the proposed Freedom of Information Act as a major plank in the Government's proposals for constitutional reform, and a radical advance in open and accountable government. It will help to change for good the secretive culture of the public service. We congratulate Dr Clark on the proposals (paragraph 1).

The Government in turn welcomes the Committee's very positive response to its proposals. It looks forward to working further with the Committee on the draft of the FOI legislation.

2. A Freedom of Information Act is long overdue (paragraph 3).

The Government agrees: it is to be regretted that in this area the UK fell behind much of Europe, as well as Commonwealth countries like Canada and New Zealand, from the end of the 1970s onwards. This is why the Government has produced a White Paper on FOI within eight months of taking office, and regards further progress towards an FOI Act as a priority issue.

3. We urge the Government to allow sufficient time for discussion of the draft Bill, and for its passage through Parliament, and in particular that the Committee have the opportunity for full consideration of the draft before the Bill itself is introduced (paragraph 7).

The Government fully agrees with the Committee about the importance of the consultation process, and the need for adequate time for the Committee and others to examine the draft Bill before introduction. The initial consultation period on the White Paper, which in practice lasted from mid-December 1997 until well into March 1998, has been valuable both in eliciting views on FOI, and confirming the range of interests which the Government will wish to involve at the next stage. There is, obviously, a need to balance the requirement for further consultation with the importance of making further progress towards a fully-fledged FOI Act. Nevertheless, the Government would hope to be able to offer a fully adequate period of further consultation on the draft Bill.

4. We are disappointed that the exclusion of some—albeit only a few—areas completely from the risk of disclosure under the Freedom of Information Act means that the Act will in some points be inferior to the Code of Practice. We consider this to be unacceptable (paragraph 9).

5. We have serious doubts that the regime proposed strikes the right balance between privacy and openness, or indeed whether it will be workable (paragraph 10).

6. We accept the Data Protection Registrar's view that preserving the privacy and confidentiality of individuals is a vital interest, which should be overridden only on careful consideration and for good reasons (paragraph 16).

7. We recommend that the Government clarify to what extent it believes that the Data Protection Bill will work to prevent access by third parties to information about an individual, and how it is proposed that the Data Protection Bill is to provide the protection for the individual's right to privacy against the right to information held by the Government (paragraph 16).

8. We recommend that if the Data Protection Registrar is really going to provide the only means of enforcing access to information held by a public authority about oneself then she should be enabled to fulfil this role at least as effectively as the Information Commissioner could do under the Freedom of Information legislation. This means that the provisions in the Data Protection Bill relating to access to personal information should give rights of access by individuals at least as great as those proposed in the Freedom of Information White Paper, and should avoid placing obstructions in the way of that access (for example by allowing appeals against the Registrar's decision to force disclosure) greater than those presented in the Freedom of Information Bill (paragraph 20).

9. We regret that an opportunity was not taken to consider joining the Freedom of Information and Data Protection regimes in order to make a more coherent and more workable system for access to personal information. We are most unhappy that the Government has been so vague about the relationship between the Freedom of Information proposals and the Data Protection Bill, and that it seems that it has not until very recently got to grips with the problems involved in reconciling the two (paragraph 21).

The Government agrees with the Select Committee when it says in the Report that "finding a workable balance between the right to privacy and the right of access to information was bound to be difficult." The difficulty is increased by the need to reconcile two regimes which come from different sources: data protection from the Council of Europe and the European Community and freedom of information from the national Government. However, there are clear constraints on any approach the Government can take in reconciling the two regimes, because of the need to avoid breaching the Data Protection Directive or Article 8 of the European Convention on Human Rights (ECHR). The Government believes that the correct balance can be achieved by aiming to provide the maximum degree of openness which is compatible with them. The Government believes it can legislate to make this workable.

The Government is examining an approach which would permit applications for personal information to be made under the Freedom of Information (FOI) Act but for all such applications which are for the applicant's own personal information to be treated as subject access requests made under the new Data Protection Act. This avoids the need for a second, bespoke FOI regime for the release of personal information (which would perhaps cause confusion or discrepancies) while not penalising the user for applying under the "wrong" Act. At the same time this approach would enable the FOI Act to extend the access rights of the Data Protection Act in the public sector to ensure full coverage of retrievable personal information, in effect removing the restriction that manual files must be constructed in a particular way to allow access. This fulfils the Government's commitment in the White Paper to apply the FOI Act to "all personal data held by public authorities" (Your Right to Know, paragraph 4.5).

The Government believes that this means of permitting access to one's own personal data would be both comprehensive in scope (because of the extension described above) and strong in enforcement, allowing the applicant recourse to the Data Protection Commissioner and the Courts in the exercise of his (or her) rights. The Government believes that the Data Protection Commissioner should be able to fulfil this role effectively but it will examine the position in detail to ensure that individuals are not disadvantaged in subject access terms by the lack of recourse to the Information Commissioner.

The Government agrees with the Committee's view that "preserving the privacy and confidentiality of individuals is a vital interest, which should be overridden only on careful consideration and for good reasons". It believes that this can be provided for, in respect of both subject access requests which might incidentally reveal third party information and of any direct requests for information about third parties. The release of personal information to a third party under the FOI Act would only be allowed if it was also permitted under the Data Protection Directive (where the data falls within its scope) and the ECHR (in all cases).

The Government notes the Committee's concern about the earlier lack of detail in these proposals but draws attention to the different timetables deriving from the Directive and the Manifesto commitment respectively. The first necessitated introducing a Bill in the first Session of the new Parliament; for the other the Government needed first to develop main policy proposals and publish them in a White Paper. Both were done within eight months of the Government taking office. It believes that it will achieve a coherent and workable system for access to personal information and notes that there will be an opportunity to amend the Data Protection Act, if necessary and within the requirements of the Directive, through the FOI Act. It is important to remember that, at the time the Government took office, no plans whatever had been prepared for an FOI Act, nor any announcement made as to how the Data Protection Directive was going to be implemented in the UK. The Government believes that given their respective stages of development, and the timetables driving them, any attempt to combine them would have been to the detriment and delay of both.

10. We agree that a system of appeals for third parties is essential (paragraph 22).

The Government, in line with the views of the Committee and of the majority of those people and organisations that responded to the consultation on the White Paper Your Right to Know, recognises the need for suitable provision for third party appeals against decisions to release information about them.

We also acknowledge that there could be practical difficulties. We will need to make arrangements which are consistent with the ECHR and the Directive, and in doing so to reconcile the rights of third parties and the practicalities of operating an appeals system.

11. We have been impressed by the breadth of the White Paper's commitment to Freedom of Information. But this has made the Government's decision to exclude certain bodies and classes of information altogether from the scope of the proposed Act all the more regrettable (paragraph 23).

We believe that the proposals contained in the White Paper represent a significant step forward in terms of openness from the system under the Code of Practice on Access to Government Information: FOI will result in a great deal more information being made available to the public.

However, a Freedom of Information Act, no matter how comprehensive its provisions, must protect certain categories of particularly sensitive information.

The Government is aware of the significance of keeping particular types of information outside the Act, and has only done so after careful consideration in each case. In preparing the Bill, it is taking careful note of the Committee's observations.

The Government in any case believes that straight-forward comparisons with the Code of Practice here are misleading. Although the Code covers all types of information, its 15 exemptions provide a range of approaches to protection. They include class-based harm tests which apply to a whole category of record (eg Cabinet papers and information protected by legal professional privilege) rather than focusing on the specific harm which disclosure of the contents of the records might cause. There is also information (eg personnel files and contractual information both of which are outside the Parliamentary Ombudsman's jurisdiction) which is de facto excluded by virtue of a combination of exemption, and the lack of any review and appeals mechanism. The Government does not believe therefore that its decisions on excluded categories of information will create a regime which is more restrictive than the Code.

12. We recommend that information relating to law enforcement should not be subject to total exclusion from the Freedom of Information Act. Instead, we recommend that it should be disclosable, subject to a test of "harm", rather than of "substantial harm". This would bring it into line with the existing Code of Practice (paragraph 30).

The White Paper proposes to exclude only some information relating to law enforcement. The FOI Bill must provide adequate protection for law and order and other essential law enforcement work. This is an important and sensitive issue, and the Government will consider further where the balance should lie between exclusion and a law enforcement specified interest subject to a harm test.

13. We recommend that information which consists of legal advice obtained by a public authority, or which would normally be protected by legal professional privilege, should not be excluded from the Freedom of Information Act. Instead, it might be protected by being listed as a separate "specified interest" which could justify exemption, with the presumption that any disclosure of a document that was legally privileged would cause "substantial harm" to the integrity of the relationship between lawyer and client, and therefore such documents would be withheld (paragraph 32).

The Government wishes to ensure that legal advice is securely protected. This was the case under the Code of Practice and, it is proposed, will remain so under an FOI Act.

However, as already noted, this is an area where the approach under the Code may well give a misleading impression about the extent to which information might be available. Whilst legal advice and other information covered by legal professional privilege are included under the Code, severe restrictions are placed on access to it. As the exemption for this information is not subject to a harm test, it can in practice be withheld from disclosure. The appearance of availability under a system where in fact there is no likelihood of any actual disclosure is a situation the Government has tried to avoid in drawing up its proposals for an FOI Act.

The Committee's recommendation, despite its use of a substantial harm test, would tend to replicate this problem. In particular, it would result in an additional specified interest, but one that would almost be a closed category.

14. We recommend that personnel information should not be excluded from the Freedom of Information Act and that the Government should clarify the implications of the Data Protection Bill on the right of access to personnel records under Freedom of Information (paragraph 35).

Under the data protection law, which reflects the requirements of the Directive and applies to both public and private sectors, personnel records will be covered if they are held on computer, or in structured manual files. The exact extent to which personnel records will fall within the scope of the Data Protection Act is not straightforward and is likely to remain uncertain until after the Act comes into force. In its work to dove-tail FOI and data protection as described in the response to Recommendations 5-9 above, the Government is considering carefully the position of those public sector personnel records which may fall outside the scope of the data protection law.

15. We recommend that if any particular functions are to be excluded from the right of access, there should be a right of appeal to the Information Commissioner concerning whether the exclusion had been correctly claimed; the Information Commissioner should have the right of access to any records required in order to decide this question; and the exclusion should subsequently be testable through the courts (paragraph 36).

Although paragraph 5.10 of the White Paper states that the Commissioner "will not have any locus where the information concerned is not covered by the Act" we accept that the Information Commissioner must in practice have the power to determine whether or not particular information or records were within the scope of the Act. This power would not, however, extend to excluded bodies. The White Paper makes clear that decisions on matters of disclosure will be amenable to judicial review.

16. The justification for the exclusion of Parliament has not been made out. The exclusion may well convey the wrong impression to the general public, given the purpose of this legislation. We hope that the Joint Committee on Parliamentary Privilege will review this question, and we recommend that the Government re-examine the exclusion of Parliament in the light of its Report (paragraph 37).

The Government notes that in making this recommendation the Committee had particularly in mind information which relates to the various administrative functions carried out within Parliament. The Government has no objection in principle to including these functions within the scope of the Act and would be guided by the views of the House itself on the issue. If, as is suggested, the Joint Committee on Parliamentary Privilege wishes to express a view, the Government will of course consider that Committee's views carefully.

The Government has also examined the position of the Parliamentary Ombudsman and the National Audit Office under the Act. The Government believes that, in principle, these bodies should fall within the scope of the Act, along with other Departments, agencies and public bodies. The Government is however concerned that the effectiveness of the PCA and the NAO should not be undermined by FOI applicants "shopping" between the body itself and organisations within its jurisdiction in order (for example in the case of the Ombudsman) to continue to pursue a complaint on which the Ombudsman has already issued a report. The Government will consider whether any specific provisions need to be included in the Bill—for example a requirement for requests for information obtained by the PCA or NAO in the course of their investigations to be re-routed to the originating Department.

17. We recommend that the Security and Intelligence Services should not be excluded from the Freedom of Information Act (paragraph 39).

FOI is about opening up Government but it is not about putting our security and defence at risk. Our Security and Intelligence Agencies, and the Special Forces, must be able to operate in complete confidence in order to carry out their duties effectively. We do not think that they would be able to do so if their operations and activities were subject to Freedom of Information legislation in the same way as the rest of the public sector.

The Agencies themselves, whilst not subject to the Code of Practice on Access to Government Information, have their own established mechanisms of accountability and oversight, and this has led to a progressively greater degree of openness in recent years. Their accountability is ensured through responsibility to their respective Secretaries of State, the work of the Commissioners established under the Security Service Act 1989, the Intelligence Services Act 1994 and the Interception of Communications Act 1985, and through the oversight work of the Intelligence and Security Committee. The ISC has successfully investigated some sensitive areas of GCHQ's policy. The Commissioners and the ISC produce annual reports which are presented to Parliament by the Prime Minister. Aggregate figures for the Single Intelligence Vote appear annually in the Supply Estimates, and the Prime Minister recently confirmed that the Government intends to hold a regular debate in Parliament on the intelligence and security services. Occasional information booklets on the services are published by the Stationery Office. GCHQ has released to the Public Record Office a considerable quantity of material.

18. The definition of the "privatised utilities" within the Act is one of the least clear aspects of the proposed legislation. We believe that the Bill should be made to apply more precisely just to companies which are monopoly, dominant, or franchised suppliers in one of the regulated, "utility" markets (paragraph 44).

We note the views of the Committee. It is our intention to make the precise extent of the coverage of the privatised utilities clear in the FOI Bill. Such clarity will be to the benefit of potential FOI applicants and utility companies alike who need to know who will be covered by the legislation.

This need for certainty and clarity—and the additional importance of avoiding the Bill becoming hybrid—raises a series of policy and legal questions. It is clear that some possible definitions of coverage within the utility industries will not be satisfactory in this respect. For example, coverage on the basis of the windfall levy would relate to historic economic criteria, not those relating properly to the carrying out of "public functions" and the resulting need for greater accountability. Similarly, coverage based on concepts of "dominant" or "near-monopoly" status would first require criteria to define those terms, then a mechanism for assessing potentially complex changes over time as eg competition was progressively introduced (or increased naturally) in some industries. The effect might be that individual companies moved in and out of FOI over time which—even if it could be successfully monitored for statutory purposes—would provide the reverse of the certainty for the industries, the consumer and the public which the Government is seeking.

The Government believes that its policy objectives may be achieved through coverage of those utility companies which "carry out statutory functions" (ie, functions and duties conferred by statute) in line with paragraph 2.2 of the White Paper. Such an approach would:

(i)    help ensure equitable treatment across the utility sector and between that sector and others, based on existing statute and not historic or shifting economic criteria;


(ii)    achieve significant coverage in those areas of the utilities which most clearly carry out essential public functions;


(iii)  exclude purely commercial activities which utility—and other— companies carry on and which are unrelated to the policy reasons for extending freedom of information beyond the public sector;

We have also considered the option proposed by the Committee of covering those utilities that operate as "franchised suppliers" (a definition which, in legal terms, is assumed to mean the carrying on of functions under license pursuant to a statute). The option of extending coverage to statutory licence holders, although it might be legally feasible, would in our view extend the private sector coverage far beyond that appropriate with the primary, public sector purpose of FOI, while at the same time potentially imposing a significant regulatory burden on the private sector.

19. We recommend that the Government should make this point [about whether journalists' sources are to be protected under one of the "specified interests"] clear in their response to this Report (paragraph 45).

The Government is clear about the need to ensure that Freedom of Information does not diminish freedom of expression, and the rights of the media under Article 10 of the European Convention on Human Rights. The Government believes that the structure of "Gateway" provisions (including barriers to premature disclosure of information due to be published at a future date) together with the specified interests, should provide a good degree of protection for the necessary interests of public service broadcasters. In particular, the "information supplied in confidence" specified interest should protect confidential sources of information to journalists, while personal information within the data protection law will be covered by the particular protection given to information held for journalistic purposes. The Government will however, consider carefully as it moves towards publication of a draft FOI Bill, whether anything further is needed to ensure a satisfactory approach to the issue of investigative journalism which the Committee has raised. Broadcasting and other media organisations will of course have an opportunity to comment on the draft Bill after it has been published.

20. We recommend that there should be provision to ensure that the Act will be brought into effect in Scotland in relation to devolved matters as soon as it comes into effect in the rest of the UK, to ensure that there would not be a lengthy period in which Freedom of Information will not apply to devolved matters in Scotland (paragraph 46).

The Government has made it clear that it will be for the Scottish Parliament to determine the approach of the Scottish Executive and other public bodies to openness and freedom of information within areas of devolved competence. The Government fully expects that the Scottish Parliament will adopt openness and other forms of best practice but it would be at odds with the principle of devolution for the Government to seek to impose a regime in Scotland over matters for which the Scottish Parliament will be responsible.

21. We recommend that bodies subject to the Act should be obliged to publish a detailed booklet covering the role of the body, how it works, the type of records it holds, and its policies on disclosure of documents and that they should be under statutory duty to advise and assist requesters to narrow and define the information they want (paragraph 49).

The White Paper makes clear that the Act will set out duties for public authorities to publish a range of information, including explanatory material on their dealings with the public. Guidance on disclosure under FOI that public authorities produce should therefore normally be publicly available, and in any event should be disclosable under the FOI Act itself. The statute will also require public authorities to assist enquirers in certain circumstances to define the information they are seeking. The Government does not think it would be realistic to require every organisation covered by the Act—which would for example include every school, GP practice and government advisory committee—to produce detailed material on itself and its relationship to the Act, which should in any case be one of compliance. However, for central government a number of existing or contemplated activities should between them ensure compliance by Departments and agencies with much of this recommendation:

(i)    Departments' Annual Reports and corresponding publications for Next Steps Agencies and Non-Departmental Public Bodies set out the role and activities of these bodies in detail;


(ii)    possible HMSO proposals for an Information Asset Register, held on HMSO website;


(iii)  Departmental websites. The amount of information about all aspects of UK public bodies available on the Internet is far in excess of that in for example most European Countries. The Government intends to capitalise further on this very promising position;


(iv)  Model guidance. For example, Cabinet Office (OPS) produces a guidance booklet for its staff on Handling Code of Practice cases. Suitably modified in due course for FOI, this could become part of model documentation recommended to other public authorities covered by the Act.

22. We recommend that public authorities should be required to make available existing indexes to their records, where it is practicable to do so, should be required to create indexes to new records; and should be encouraged to create indexes for old records. We accept that this need not be in the Bill itself, but we recommend that authorities should be obliged to prepare a strategy for cataloguing their records (paragraph 50).

File and record indexes will be disclosable under the Bill subject to the same protection mechanisms as other information: in other words, all such material may potentially be disclosed except where it discretely lists material which would be sensitive. Beyond this, individual public bodies might wish to make indexes publicly available, and there is no reason why they should not do so. It is not however practicable to require public authorities to publish their indexes—this would be an extremely resource-intensive and expensive exercise.

Central government is already required under the Public Records Act to maintain reliable records, and the indexing of records is a vital part of this process. We do not therefore feel that it is necessary under FOI to duplicate this requirement. Other bodies subject to FOI provisions will be able to turn to the PRO for assistance in creating their own suitable records management systems. It is not considered practicable however to place cataloguing requirements on such bodies—this would prove a considerable task for such bodies at a time when resources could be better spent on records management as a whole.