The White Paper proposes to "provide the people of this country, for the first time, with a statutory right of access to the information held by public authorities". It will also provide a "clear standard of openness for the Government as a whole, in keeping with the need for proper Ministerial accountability to Parliament".[179] Anybody may apply for records or information and will not need to justify their application; they will be able to gain access to the records themselves, not just (possibly edited) "information"; the access right will apply to records created either before or after the Act comes into force; and it will apply to any records that public authorities covered by the Act hold—not only those which they have themselves created—as long as they relate to their public functions.[180] While individuals will have a right to obtain information from government, government will have a duty to provide information without prompting. The White Paper seeks to promote "active disclosure", the "pro-active release of information". The bodies to which the Act applies will also have a duty to make certain information publicly available, as a matter of course. This will include the facts and analysis which the Government uses to frame major policy proposals and decisions; explanatory material on dealings with the public; reasons for administrative decisions to those affected by them; and operational information about how public services are run.[181]

The Freedom of Information Act will cover "the public sector as a whole, at national, regional and local level". It will cover information held by central and local government, and government bodies, such as quangos; the NHS; the armed forces; "administrative functions" of the courts and tribunals and of the police, schools, further education colleges and universities; public service broadcasters; local public bodies; and some private sector organisations, including the private utilities, and private firms which have contracts with the Government.[182]

A few public bodies—Parliament and the Security Services—will be completely excluded from the scope of the Act.[183] In addition, some types of information from some bodies will be excluded entirely: personnel records, information relating to the investigation and prosecution functions of the police, prosecutors and other bodies carrying out law enforcement work, and legal advice obtained by the Government.[184]

There will be a presumption that information will be disclosed, except in those areas that are excluded. Authorities faced with a request for information under the Act will have to assess the effect of disclosing it. This is to be done by a "harm test"—asking what impact disclosure would have on any one of seven "interests". In the case of six of them—national security, defence and international relations; law enforcement; personal privacy; commercial confidentiality; the safety of the individual, the public and the environment; and information supplied in confidence—authorities would have to ask themselves whether the information would cause "substantial harm". In the case of the seventh—"Decision making and policy advice"— it will be sufficient simply to prove that "harm" (not substantial harm) would result from disclosure in order to prevent the information in question being released. The Bill will set out "particular factors" in respect of each of those specified interests. Those considering applications should have regard to these when deciding whether a disclosure would cause harm or substantial harm. Any decision on whether or not to release information will be subject to a further test, on whether or not it is consistent with the public interest.[185]

There are a set of provisions—referred to as "Gateway" provisions, which lay down how a request for information is to be made. The White Paper says that applicants will need to act "reasonably" and not abuse or misuse the access rights the Act provides.[186] Authorities may be able to "deal differently" with applications for information which has already been, or will be published; applications which are not specific enough; and large-scale "fishing expeditions" "which would result in a disproportionate cost or diversion of the public authority's resources in order to identify, collect, or review the required records".[187] Partly in order to deter "frivolous requests" and to encourage "responsible use" of the Act an access fee will be charged per request for information, of no more than £10; authorities will be able to charge extra fees for processing each request, but not to make a profit, and with heavy fees falling primarily on the limited number of applications which involve significant additional work.

The White Paper proposes a two stage system for appeals against a decision not to disclose information. In the first place there will be a formal procedure of internal review, to be carried out by an official who was not involved in the original decision. The second stage of appeal will be to an Information Commissioner, who is to be an "independent office holder", rather than "an officer accountable to Parliament".[188] The Commissioner will have the power to order disclosure of the documents concerned. There will not be a right of appeal beyond the Commissioner to the courts, although challenges may be made by judicial review.

180  paras. 2.6-2.16. Back

181  paras. 2.17-18. Back

182  paras. 2.1-2.2. Back

183  para. 2.3. Back

184  paras. 2.20-2.22. Back

185  Chapter 3. Back

186  para. 2.23-2.25. Back

187  para. 2.26. Back

188  para. 5.7. Back