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 - (continued)

23. We recommend that there should not be an access fee either in the Freedom of Information Act or in the Data Protection Act; that authorities should continue to be allowed to charge reasonable fees along the lines of the scheme in the White Paper, based on the time taken to deal with a request; that the Government should consider introducing a standard hourly access charge, for all the bodies to which the Act will apply; that simple requests, dealt with within a certain time, should be free (and that multiple requests can for those purposes be dealt with together so it cannot be claimed that they should all be free); and, as in the existing proposals, that all charges for personal information should be capped at a low level—less than £10—in effect meaning that they are waived in most cases (paragraph 55).

The Government welcomes the observation, in the final part of this recommendation, that its proposed charges for personal information, which are capped at a maximum of £10, are in line with the Committee's thinking. The Government accepts the Committee's observation that £10 may not represent a realistic economic return to public authorities, and may therefore in many cases be waived, as not worth the cost of collecting and processing. The Government sees the £10 maximum fee (where it is charged) not as a significant deterrent to potential applicants, but as an encouragement to think clearly about the request they wish to make, perhaps after some informal contacts with the public authority in question, which may indeed answer the query without any formal application being needed.

On Data Protection, it is unclear why the recommendation seeks the abolition of an application fee, since the Committee's statement, "that all charges for personal information should be capped at a low level—less than £10¼" almost exactly describes the regime under data protection—where the £10 application fee is a maximum and may be waived altogether—and the prospective regime for requests for personal information under FOI, where the White Paper notes that "where the request is for an individual's own personal information, the authority holding the information can charge a flat fee up to a maximum of £10."

As far as charges for official information are concerned, the White Paper makes it clear that these should reflect only "reasonable" costs (as the Committee proposes) and that they should be structured to fall primarily on requests which involve significant additional work— in line with the Committee's proposal for a free "threshold" for simple requests. In this context, the Government notes that most Departments' charging schemes under the Code do indeed provide such a threshold, whether for simple requests per se, or below a certain amount of time spent on the request. In considering the parameters of the charging scheme to be set for requests for official information we will examine critically whether there should continue to be scope—as under the Code—for a flat-rate charge for simple requests, given the £10 maximum fee allowable, or whether these should be free, as the Committee recommends.

Finally, the Government will consider carefully the nature of the charging parameters to be laid down. In practice (as the Code table printed in the Committee's Report shows) many public authorities are likely to charge on a hourly basis. But it seems implausible that a single hourly rate could sensibly apply to the enormous and disparate range of public bodies to be covered by FOI, quite apart from the fact that FOI's application to cover electronically—held information will on occasion require public authorities to need to recoup the costs of supplying information on media other than paper. All this makes it likely that the Act will contain a power to charge and general parameters for charging, leaving the detailed charging structures to be set by Regulations (as the wording of the White Paper would suggest), rather than a highly detailed scheme with uniform rates on the face of the Act.

24. We recommend that there should be only a single set of charges laid down, and no discrimination between commercial organisations and others in the fees demanded (paragraph 56).

The Government agrees. There was in fact quite a bit of support for the suggestion in the White Paper that there might be a two-tier scheme, and the Government needs to bear this in mind. But there were no straight-forward solutions offered for some quite fundamental problems of complexity and prevention of abuse, which might easily overwhelm a two-tier structure. So at present the Government has no plans to include this in the Bill.

The Government notes however, that access to information via the FOI Act does not remove Crown copyright from that information and any commercial exploitation or use of data obtained in this way would need to be licensed under Crown copyright in the usual way.

25. We believe in general that Crown Copyright should be used selectively, to ensure that material that is primarily of use to commercial organisations can still contribute to departments' income, while publications that are of use to the general public (and particularly publications that assist in the Government's duty to be open and accountable to the public and to Parliament) are widely and very cheaply available (paragraph 57).

The Government has set out its belief that a large amount of material should be made available automatically and pro-actively by public authorities and noted that a very great deal of information is already made available by a variety of means. Proposals for making information publicly available are set out at paragraph 2.18 of Your Right to Know. The resulting legislation is indeed likely to go beyond other countries' FOI Acts in this respect. Moreover, we believe that this information should, in general, be made widely available at nil or minimal cost.

As set out in the response to recommendation 24 above, Crown copyright will continue to subsist in much of the information accessed under the FOI Act and, depending on the nature of the material, commercial use and exploitation will need to be licensed under the Crown copyright regime or other copyright provisions that apply.

26. We believe that there is no reason why public sector contracts with private sector organisations for the delivery of goods and services should not be available under Freedom of Information (paragraph 64).

Where the procurement of services is subject to EC Directives, summary details of winning tenders are already published in the European Journal.

The FOI White Paper stated that openness should be the guiding principle where statutory or public functions are being performed; and that this same principle should also apply in the contractual arrangements of public authorities. To ensure proper accountability, it is important that the public should know how much services cost, no matter who provides them.

We do not think that specific requirements are necessary or appropriate within the Bill to secure the openness of contracts, (although provision may be needed to cover the disclosure of information relating to contracts, as mentioned in paragraph 2.2 of the white Paper). For the purposes of FOI contracts will count as records or information held by public authorities and will therefore be subject to the general right of access, subject to the conduct of the harm and public interest tests as set out in the White Paper.

27. We believe that where commercial confidentiality is claimed, the public authority concerned must justify it (paragraph 66).

The Government agrees. Public authorities will be required to justify, not only their decision to claim a particular specified interest in respect of a particular piece of information or record, but also their assessment of the nature of any harm that would be caused by disclosure. In practice this is likely to involve the public authority in examining whether the case made out for confidentiality by a commercial organisation is justified.

28. We recommend that the Government clarify what is meant by the "raw data and factual background material which have contributed to the policy-making process", and when it might be made available—whether only after the decision on the policy is taken (and if so, how long after) or before the decision is taken (paragraph 70).

Factual and background material will often be made available as part of the duty we propose to place on public authorities under the Freedom of Information Act to publish, as a matter of course, facts and analysis which the authority considers important in framing major policy proposals and decisions (paragraph 2.18 of Your Right to Know). Such publication will often be during the course of the policy-making process, in order to inform public debate or a specific public consultation on policy options. An example of this was the publication of Your Right to Know: Background Material published to inform the consultation process on the White Paper.

Factual and background material may also be made available in response to a specific access request (paragraph 3.12 of Your Right to Know). In this context, the point we would emphasise is that the harm test that is necessary to protect the Integrity of Decision Making and Policy Advice will only come into play to protect the confidentiality of internal discussion and advice on policy options. It will not extend to preventing disclosure of factual material obtained or prepared for that discussion.

In either case (active publication or disclosure in response to an access request) there are unlikely to be hard and fast rules about when such material can be released. As with other aspects of freedom of Information, each case will be assessed on its merits, against a presumption in favour of disclosure. Wherever possible, however, the aim will be to publish information and analysis before final decisions are taken so that it can inform public discussion and debate of the policy options that are available.

29. We would welcome clarification from the Government as to whether the policy advice exemption is intended to apply to all public authorities, and if so, whether it is intended to be based on a test of "harm" or "substantial harm" or, if not, how 'Government' is defined for the purpose of the exemption (paragraph 73).

The intention is that, insofar as they are applicable in the circumstances, all of the specified interests and their related harm tests (including Decision-Making and Policy Advice) will apply to all bodies within the scope of the Bill. Public authorities at all levels of government, as well as voluntary and private sector organisations, need some provision to allow internal discussion and advice to take place on a free and frank basis. We therefore make no distinction of kind between central government and other public authorities in this respect.

30. We welcome the commitment to make a public interest test an identifiable stage in the process of dealing with a Freedom of Information request, which, we believe, will help to concentrate minds within departments on the need for considering the public interest in each case (paragraph 74).

The Government agrees. One of the reasons that the public interest test was treated as a separate issue in the White Paper was to reflect the view that public interest issues affecting disclosure need more systematic consideration than is often possible under the Code of Practice.

31. We agree that there should be a clearer exposition within the Act of what constitutes the "public interest", in order to give general guidance to departments and the Information Commissioner. It should cover not only openness and accountability, but should also cover possible dangers to the public or the environment, wrongdoing or waste, inefficiency in providing public services or possible serious injustice (paragraph 76).

The Government notes the Committee's views, and will ensure that they are considered as the Bill's provisions which define the public interest test are prepared.

32. If the Official Secrets Act is allowed to determine the way in which decisions are made under Freedom of Information, it could easily become the means by which public authorities are able to cover up their mistakes (paragraph 80).

We would emphasise that the Official Secrets Act is designed to protect a limited amount of highly sensitive information from unauthorised disclosure. It is not designed to provide public authorities with something to hide behind. We are satisfied that the information it protects is tightly defined and the harm tests of sufficient rigour.

33. We recommend that the interests protected by the Official Secrets Act should not prevent disclosure if disclosure is not capable of being prevented either under the harm tests or public interest tests (paragraph 82).

As the White Paper makes clear, compliance with existing legislation will be an aspect of the public interest test. We are working to ensure that there will be no potential conflict between the Acts, but the Government is committed to preserving the effectiveness of the Official Secrets Acts and we will ensure that no decision under the FOI Act would force a disclosure which would be in breach of the Official Secrets Act.

34. We recommend that the Chancellor of the Duchy of Lancaster should, in his response to this Report, correct the statement in paragraph 5.7 of the White Paper relating to the independence of the Ombudsman—and cease to draw the wrong inferences from it (paragraph 85).

We did not intend to suggest in paragraph 5.7 of the White Paper that the Parliamentary Ombudsman was subject to political pressure or unable to act independently of government.

The Chancellor of the Duchy of Lancaster has already gone on the record to make it clear that the Government is in no doubt about the Parliamentary Ombudsman's complete independence and continues to have full confidence in the integrity of his judgements.

35. We recommend that the Government review the system of public sector complaints authorities in the UK with a view to bringing them together—or at the very least making it easier for people to complain without having the difficulty of working out precisely which complaints authority they need to deal with (paragraph 89).

The Government recognises that there has been a rapid growth in the number of public sector complaints systems over recent years in response to the public's demand for complaints to be dealt with more quickly and effectively. These complaints are normally dealt with locally, by people familiar with the specific circumstances. There has also been an increase in the number of Ombudsmen, who are at the top of the complaints ladder. The Government notes that a balance needs to be struck between the expertise of complaints procedures on the one hand and their accessibility and clarity on the other hand. The Government considers that having complaints dealt with locally is the ideal; but when local procedures break down or are unsatisfactory, there needs to be ready accessibility to the next level.

The Service First Unit will shortly be publishing a new guide "How to deal with complaints". The guide advises that, if a complainant remains dissatisfied with the way a service has dealt with a complaint, the organisation should tell the complainant about the next stage in the complaints procedure, including reference to the appropriate Ombudsman. The guide will be distributed widely to public sector organisations that deal with members of the public, encouraging the spread of best practice.

The Government is currently considering a proposal from the British and Irish Ombudsman Association for a focal point in central Government on Ombudsman issues. It is concerned that the right balance is struck between maintaining the flexibility and independence of Ombudsmen schemes and the dissemination of general guidance.

36. We recommend that a Select Committee be established to examine the reports of the Information Commissioner; or that the function be added to those of this Committee (paragraph 90).

The Government hopes that all departmentally-related Select Committees will take an interest in the workings of the Freedom of Information Act in their areas of responsibility and would also welcome scrutiny of the overall effectiveness of Act by a Select Committee. The Government agrees that the Select Committee on Public Administration would be a natural choice for this role, without any amendment needed to its current order of reference.

37. We support the proposal, tentatively advanced in the Government's background paper, that there should be an order-making power in the Freedom of Information Act enabling the repeal or amendment of provisions not repealed in the Act to be achieved by affirmative order. We believe, though, that there should be some system to ensure that the pressure for this is maintained, and propose either that there should be a date by which all the provisions must be reviewed or else they are automatically repealed; or there should be some form of Parliamentary scrutiny of the provisions, perhaps by means of a Committee of the House which could be given the function of reviewing non-disclosure provisions with a view to recommending repeal or retention. Such a Committee might deal with the individual provisions in a similar way to the way in which the Deregulation Committee deals with Deregulation Orders (paragraph 93).

The Government agrees that the Act should contain such an order-making power. OPS is at present examining the existing statutory bars to disclosure with sponsor Departments with a view to having reviewed all of them by the time of introduction of the FOI Bill. The Government agrees the need to maintain pressure for further repeals or amendments to these provisions after that date. However, as it will be open to the present Select Committee to investigate and hear evidence relating to provisions which have not been repealed or amended, the Government sees no need for a separate Committee of the House solely for that purpose. After the FOI Act has come into force, the Government will periodically assess the scope for additional repeals or amendments in the light of the operation of the Act in practice and of other factors, including any relevant changes to EU legislation.

38. We support the idea in principle of bringing all access rights, so far as possible, into line, and recommend that other statutory access rights be brought together under the Freedom of Information Act. But we recognise that this process, if done on a wholesale basis, may result in certain rights of access being lost. We recommend therefore that this material be reviewed by a Committee of the House as we have suggested for provisions restricting access to information (paragraph 94).

It is the Government's intention that, to the extent that existing statutory access rights are subsumed within the Freedom of Information Act, the full extent of the existing access right will be preserved, if necessary by separate provision within the Act. The explanatory notes to be published with both the draft Bill and the Bill itself when introduced, will set out where this has been done, and explain the implications.

Both the Select Committee and the Standing Committee scrutinising the Bill in its passage through the House will therefore have full opportunity to consider these aspects of the Bill. While this is a matter for the House, the Government is not persuaded of the need for scrutiny by yet another Committee.

The subject access rights to personal information set out in the data protection legislation will be maintained. Suitable references to the data protection legislation will be made in the Freedom of Information Bill.

39. We recommend that the Government publish the results of its review of statutory provisions inhibiting disclosure or requiring and permitting disclosure, and indicates which of these are based on EU requirements, and the extent to which it considers it possible to override them in the Freedom of Information Act (paragraph 95).

The Government will publish the results of its review of statutory bars to disclosure along the lines recommended and will also publish details of how the Bill proposes to deal with existing provisions requiring or permitting disclosure.

40. We recommend that the expertise and assistance of the Public Record Office should be made available to these bodies as well as those which it is obliged to help (paragraph 104).

The White Paper acknowledges that "An FOI Act can only be as good as the quality of the records which are subject to its provisions". We recognise therefore the importance of the Committee's recommendation. It is a concern that was also raised during the consultation exercise.

We believe it is essential that all public authorities create and maintain reliable records.

The Public Record Office is willing and indeed welcomes the opportunity to provide guidance on setting records management standards to all those covered by the FOI Act.

41. If phasing in of the Act is eventually judged to be necessary, we regard it as preferable that it is those bodies which are not presently subject to a general set of access provisions which should be permitted a period to prepare themselves for the Act. In the meantime, existing statutory rights, where they apply, should continue to apply as far as these bodies are concerned. These bodies should be obliged to take steps during this period to prepare to open up their files (paragraph 107).

The Government considers that phasing in is likely to be necessary. It will carefully consider the Committee's recommendation in deciding how phasing in may best be implemented.

42. We recommend that the Government is obliged under the Act to publish an annual report on its operation (paragraph 110).

The Government will consider this recommendation carefully in determining its longer-term commitment to supporting the Act and making it a success. In doing this, it will take account of the fact that a certain amount of resource time within OPS and other Departments will be freed up by no longer having to report annually on the Code of Practice.

The Government does however have two reservations on this point:

(i)    it cannot accept the Committee's observation that the annual report on the Code of Practice would be "easily extendable into a report on the operation of the Act". The existing report is extremely detailed [see sample extract at Annex A]; moreover, its value lies precisely in the amount of detailed evidence of the Code's operation which it provides. It is inconceivable that a similar Report could be produced covering, not the 250 or so bodies subject to the Code, but the 40,000+ organisations within the scope of the Act. Careful thought would therefore have to be given to the nature and scope of any report;


(ii)    The Act will already provide for the Information Commissioner to produce his own report to Parliament. It would be unnecessary and undesirable for both the Commissioner and the Government to be under a statutory duty which in practice led to duplication and overlap of work. There is no reason why any annual report by the Government could not exist perfectly well on a non-statutory basis—as has indeed the Monitoring Report on the Code of Practice since 1994.

43. We recommend that the Cabinet Office needs to place continuous pressure on departments to promote the pro-active disclosure of information by public authorities, and to create a general disposition to disclose; and to encourage authorities to use to the full the possibilities of information technology in the process (paragraph 111).

The Government agrees with the importance of encouraging a culture of greater openness through active disclosure of information rather than simply through responsive disclosures in conformity with the Act. We intend that this should be achieved in various ways, but in particular:

(i)    through the duties on public authorities to disclose factual, analytical, explanatory and operational material set out in paragraph 2.18 of the White Paper. Although much of this is already routinely done by public bodies, the inclusion of specific requirements in the Act will be an important statement about the Government's expectations about openness;


(ii)    through a sustained awareness campaign across different sectors of the public service, to begin once the Bill is in Parliament. This would be led by the FOI Unit within OPS but also involving other elements of the Department—for example the Civil Service College, the Central IT Unit, the Service First Unit—as appropriate. The campaign would aim to act as a catalyst, designed to raise awareness throughout public authorities through direct contact with the organisations themselves or their representative bodies;


(iii)  as well as enforcing compliance with the Act, the independent role of the Information Commissioner will foster a culture of greater openness.

44. We recommend that the Government should seek to appoint to the position of Information Commissioner someone who has demonstrated the necessary toughness and independence. We recommend that this Committee be consulted on the appointment, and we would propose to take evidence from the Government's preferred candidate (paragraph 112).

The appointment to the post of Information Commissioner will be made by fair and open competition and the successful candidate will be chosen on merit. The Select Committee will be able to take evidence from the Commissioner, once appointed.