MEMORANDUM 33
Submitted by Mark Fisher MP
1. INTRODUCTION
I welcome the Freedom of Information Draft Bill
but I am worried by the way in which several of its key elements
are drafted.
Some of these are central: the powers of the
Information Commissioner; the level of "harm tests";
the width of discretion which remains in the hands of Ministers.
Some are peripheral: the power to restrict the publication of
information that is not provided on a discretionary basis; the
right to question the motives of applicants. All are important.
Together they create the tone of the Bill and the presumptions
that inform it.
Access to public information that is as open
as possible is important in a democracy. Without it the public's
ability to participate in informed debate is constrained; the
ability to hold the Government to account is limited; and the
quality of government-decision making is likely to suffer.
Since information is power, the control of information
in the hands of the few is undesirable. However, if the balance
of rights and restraints is properly tuned, Freedom of Information
is a positive force which can benefit both Government and the
public.
Contrary to media myth we are not a secretive
society. Sheaves of public information are published every day.
But, lacking a statutory right of access, this information is
released at the discretion of the Government. The purpose of Freedom
of Information legislation is to replace that discretion with
statutory rights. Instead the draft Bill perpetuates that discretion
in some crucial areas.
We should remember that there is information
which, in the public interest and for the sake of good government,
should be exempt from any right of access. Such exemptions are
common to all Freedom of Information legislation across the world.
What determines good Freedom of Information
legislation is the range and nature of those exemptions; the flexibility
of the regime which assesses whether the public's interest lies
in publishing or on withholding information; and the strength
and independence of any system of adjudication.
In some crucial respects the draft Bill is deficient.
The degree of power that remains in the hands of the executive
is unnecessary and undesirable and is conducive neither to a participatory
democracy nor to good government.
I welcome the fact that this is a draft Bill,
susceptible to amendment before it is put before Parliament, and
that the Home Secretary in his evidence to your Committee has
already indicated areas which he recognised could or might be
reconsidered. This is an open approach to legislation that is
novel and refreshing.
I am confident that, if a small number of clauses
are amended a good Freedom of Information Act can come out of
this draft Bill which will greatly enhance our public life and
will fully redeem the Prime Minister's belief, in the preface
to the 1997 White Paper, that "giving people in the United
Kingdom the legal right to know" will be a "fundamental
and vital change in the relationship between government and governed".
Several of these potential amendments have been
identified in previous submissions to your Committee, particularly
by Elizabeth France and by Lord Lester. I will confine my observations
to those aspects of the draft Bill which have received less attention,
testing the Bill against the questions which should underpin all
Freedom of Information legislation:
(a) Will it empower individual citizens,
giving them more information which affects their lives?
(b) Will it allow individual citizens to
participate more fully in the public debate and in the process
of government?
(c) Will it help to make government more
accountable?
(d) Will it result in better government?
2. THE LACK
OF A
PURPOSES CLAUSE
I believe that the draft Bill would benefit
from a new clause outlining the purposes of the Bill. Such a clause
would provide a useful point of reference for the Information
Commissioner and others when there is need to determine whether
information should be withheld or disclosed.
The New Zealand Official Information Act 1982
offers a model in its clause 4 which has the virtues of simplicity,
brevity, clarify and confidence.
(a) To increase progressively the availability
of official information to the people of New Zealand
(i) To enable their more effective participation
in the making of administration of laws and policies;
(ii) To promote the accountability of Ministers
of the Crown and officials—and thereby to enhance respect
for the law and to promote the good government of New Zealand:
(b) To provide for proper access by each
person to official information relating to that person:
(c) To protect official information to the
extent consistent with the public interest and the preservation
of personal privacy.
What is particularly impressive about the New
Zealand clause is that in scarcely more than ten lines all the
central characteristics and purposes of Freedom of Information
legislation are laid out: participation; accountability; access
to personal information; a public interest test; the preservation
of personal privacy, and the promotion of good government.
Furthermore by using the word "progressively"
it declares its belief that Freedom of Information is not a static,
finite concept but is a right that will and should develop as
both the public and government grow more confident operating it.
A clause based on New Zealand's clause 4 would
be a useful New Clause to be added to the Bill.
3. CLAUSE 28.
GOVERNMENT DECISION
MAKING AND
POLICY FORMULATION
If Freedom of Information is to contribute to
more accountable and better government it is essential that the
public has the right to know on what basis and evidence the Government
has formulated a policy or has acted.
Unless the public has the right of access to
the same information as that available to the Government, it will
be impossible to make a fair and informed assessment of the quality
and wisdom of the Government's policy or action.
At the same time it is equally essential that
the Government has the freedom to discuss and develop policy,
testing options, evaluating alternatives, costs, implications,
in private. Without such privacy government would be impossible.
Good government is impossible without robust
and frank political debate within government, and such debate
can only be conducted in camera.
Clause 28 makes no attempt to balance these
two ambitions. It is a clause concerned solely with identifying
and describing a class exemption for "the formulation or
development of government policy". In case anything has been
left out of the apparently comprehensive list in (1) and (2),
subsection (3) exempts any information which "in the reasonable
opinion of a qualified person" such as a Minister, would
"prejudice the maintenance of the convention of the collective
responsibility of Ministers of the Crown" or "otherwise
prejudice . . . the effective conduct of public affairs".
This class exemption makes no attempt to distinguish
between factual information or research which provide the background
material for policy making, and the deliberative process during
which options and alternatives are assessed and policy formed
and developed.
Nor does it distinguish between open access
to policy development as it takes place (often undesirable), and
access after decisions have been made. There is no attempt to
subject the release of information on policy to a public interest
or harm test.
The White Paper proposed to follow the general
thrust of the 1993 Right To Know Bill in not making exempt:
(b) analysis, interpretation or evaluation
of factual information, or
(c) expert advice on a scientific, technical,
medical, financial, statistical, legal or other matter.
However this approach has, in my view, been
superseded by the economy and elegance of the Irish Freedom of
Information Act 1997, clause 20.
Note that this exempts information relating
to the "deliberative processes" involved in policy making,
and if publication would "be contrary to the public interest".
But it does not exempt "factual (including statistical) information
and analyses thereof", or "the reasons for the making
of a decision" or "the report, study or analysis of
a scientific or technical expert".
This clause would seem to satisfy both the proper
concerns of government that the making/deliberation/sifting/testing
of policy options should remain private, and the proper concern
of the public that they should be able to share the factual information
available to government upon which policy decisions are made,
and so have a basis from which to assess the Government's final
decision.
If the Government needs more reassurance that
this slight widening of access to factual information would not
compromise policy making, it should examine the research it and
its predecessor commissioned into the Australian and New Zealand
Acts. The New Zealand Law Commission in its 1997 report, Review
of the Official Information Act 1982, concluded that "Ministers
and officials have learned to live with much greater openness.
The assumption that policy advice will eventually be released
under the Act has in our view improved the quality and transparency
of that advice", while the opinion of a former premier of
Victoria was that the public's access to the material on which
government formulates policy "has had a significant impact
on the quality of decision making".
Irish Freedom of Information Act 1997
20.—(1) A head may refuse to grant
a request under section 7—Deliberations of public bodies.
(a) if the record concerned contains matter relating
to the deliberative processes of the public body concerned (including
opinions, advice, recommendations, and the results of consultations,
considered by the body, the head of the body, or a member of the
body or of the staff of the body for the purpose of those processes);
and
(b) the granting of the request would, in
the opinion of the head, be contrary to the public interest;
and, without prejudice to the generality of paragraph
(b), the head shall, in determining whether to grant or refuse
to grant the request, consider whether the grant thereof would
be contrary to the public interest by reason of the fact that
the requester concerned would thereby become aware of a significant
decision that the body proposes to make.
(2) Subsection (1) does not apply
to a record if and in so far as it contains—
(a) matter used, or intended to be used,
by a public body for the purpose of making decisions, determinations
or recommendations referred to in section 16;
(b) factual (including statistical) information
and analyses thereof;
(c) the reasons for the making of a decision
by a public body;
(d) a report of an investigation or analysis
of the performance, efficiency or effectiveness of a public body
in relation to the functions generally or a particular function
of the body;
(e) a report, study or analysis of a scientific
or technical expert relating to the subject of his or her expertise
or a report containing opinions or advice of such an expert and
not being a report used or commissioned for the purposes of a
decision of a public body made pursuant to any enactment or scheme.
It has improved the public sector's professionalism
and the capacity of its officers to develop, analyse and articulate
policy that stands up to scrutiny".
I believe that the Government has nothing to
fear and much to gain in facilitating more informed and intelligent
debate in policy issues.
Clause 28 would be greatly improved by its redrafting
to incorporate the distinction between factual information and
the deliberative process of policy making, expressed in the Irish
clause 20, and by making the release of deliberative information
subject to a public interest or harm test.
4. EXEMPTIONS.
PART 2
The main exemptions identified by the draft
Bill are, in themselves, unexceptional, being common to all Freedom
of Information Acts in countries such as Australia, New Zealand,
Ireland etc.
Viz. Security (cl.18) National Security (19)
Defence (21) Internet Relations (22) The Economy (23) Law Enforcement
(26) Policy Formation (28) Personal Information and Privacy (31)
Information given in confidence (32) Commercial confidential information
(34).
However the draft Bill widens exemptions to
include investigations (Cl.25), an area not covered by any other
Freedom of Information legislation.
Clause 25(1) is unexceptional in that it exempts
information which might inhibit an authority's investigation as
a result of which a person might be charged with an offence.
But clause 25 goes much further and exempts
information that has "at any time" been held by an authority
for the purposes of any investigation relating to improper conduct,
fitness or competence, the causes of an accident, health and safety
at work, protection of the property of charities, any civil proceedings
brought by an authority.
This catalogue of various forms of impropriety
or mismanagement by authorities includes many matters which are
precisely those about which people want information: accidents,
such as the Clapham Rail Disaster or the sinking of the Herald
of Free Enterprise (iii); fraud or embezzlement (i); mismanagement
of a hospital or prison (Wormwood Scrubs?), (ii); Outbreaks of
salmonella or e-coli, (viii).
Of course it is right that information should
not be released which would prejudice or compromise a police inquiry
or criminal proceedings but once an investigation has been concluded
and has not led to a prosecution, there is no obvious reason why
such information should not be accessible.
Similarly there is no apparent reason why the
Information Commissioner should not have the power to rule and
to distinguish between non-exempt material which may be released
and other material which is needed for a prosecution. Without
that power, this clause will scoop up and exempt, for all time,
information which is entirely harmless.
The Irish Freedom of Information Act 1997 addresses
the same problem in its clause 23 on "Law Enforcement and
Public Safety".
Sections (1) and (2) are more precise than the
draft Bill in identifying information which would inhibit law
enforcement, while section (3) helpfully specifies the information
and circumstances in which information touching law enforcement
(or other investigations) should not be exempt.
In clause 25(I), the words "at any time"
should be deleted, and an amendment inserted which will allow
the Information Commissioner to test the need to exempt all information
and to allow the release of any that is non-sensitive, possibly
modelled on the distinctions drawn in Irish clause 23.
Irish Freedom of Information Act, 1997
23.—(1) A head may refuse to grant
a request under section 7 if access to the record concerned
could, in the opinion of the head, reasonably be expected to—
(i) the prevention, detection or investigation
of offences, the apprehension or prosecution of offenders or the
effectiveness of lawful methods, systems, plans or procedures
employed for the purposes of the matters aforesaid,
(ii) the enforcement of, compliance with or administration
of any law,
(iii) lawful methods, systems, plans or procedures
for ensuring the safety of the public and the safety or security
of persons and property,
(iv) the fairness of criminal proceedings in
a court or of civil proceedings in a court or other tribunal,
(v) the security of a penal institution,
(vi) the security of the Central Mental Hospital,
(vii) the security of a building or other structure
or a vehicle, ship, boat or aircraft,
(viii) the security of any system of communications,
whether internal or external, of the Garda Síochána,
the Defence Forces, the Revenue Commissioners or a penal institution,
(b) reveal or lead to the revelation of the
identity of a person who has given information to a public body
in confidence in relation to the enforcement or administration
of the civil law or any other source of such information given
in confidence, or
(c) facilitate the commission of an offence.
(2) Where a request under section 7
relates to a record to which subsection (1) applies, or
would, if the record existed, apply, and the head concerned is
satisfied that the disclosure of the existence or non-existence
of the record would have an effect specified in paragraph (a),
(b) or (c) of that subsection, he or she shall refuse to grant
the request and shall not disclose to the requester concerned
whether or not the record exists.
(3) Subsection (1) does not apply
to a record:
(i) discloses that an investigation for the purpose
of the enforcement of any law, or anything done in the course
of such an investigation or for the purposes of the prevention
or detection of offences or the apprehension or prosecution of
offenders, is not authorised by law or contravenes any law, or
(ii) contains information concerning—(ii) the
performance of the functions of a public body whose functions
include functions relating to the enforcement of law or the ensuring
of the safety of the public (including the effectiveness and efficiency
of such performance), or
(iii) the merits or otherwise or the success
or otherwise of any programme, scheme or policy of a public body
for preventing, detecting or investigating contraventions of the
law or the effectiveness or efficiency of the implementation of
any such programme, scheme or policy by a public body,
(b) in the opinion of the head concerned,
the public interest would, on balance, be better served by granting
than by refusing to grant the request concerned.
(4) In subsection (1) "penal institution"
means:
(a) a place to which the Prisons Acts, 1826
to 1980, apply,
(b) a military prison or detention barrack
within the meaning, in each case, of the Defence Act, 1954.
(c) Saint Patrick's Institution, or
(d) an institution established under the
Children Act, 1908, in which young offenders are detained.
5. DISCRETIONARY
DISCLOSURES CLAUSE
14
Subsection (4) allows a public authority to
require an applicant to explain the use to be made of information,
and then to withhold that information if it does not approve of
the use to be made of the information.
Subsection (6) is a gagging provision which
permits a public authority to restrict "the use or disclosure
of the information" thus negating the concept of openness.
These subsections would allow a public authority
to withhold or restrict information if it did not consider an
applicant respectable or if it considered that publication as
part of a campaign, or in a fringe periodical, was not desirable.
These subsections are contrary to the basic
principles of freedom of information, restricting a right of access
by the arbitrary discretion of a public authority, even when the
release of information is shown to be in the public interest.
Access should be determined by reference to
the material or information involved, not by reference to the
character or intentions of the applicant. Such an approach does
not exist in any other Freedom of Information legislation. If
information is exempt and its publication is in the public interest,
it should be released.
These subsections (4) and (6) should, in my
view, be deleted from the Bill.
6. INFORMATION
NOTICES CLAUSE
44
Clause 44, subsection (7) relieves a public
authority of the duty to co-operate with the Information Commissioner
and provide information that she may require, if that information
reveals evidence of any offence and could expose the authority
to prosecution.
This is bizarre. These circumstances, of actual
or potential wrongdoing by a public authority, are exactly the
circumstances in which the public needs to have a right to know
what is being done in its name and with its money. Instead this
subsection conspires against the public, and the Commissioner,
in covering up such evidence.
It must be a mistake for new legislation to
give the force of law to such actions.
Subsection (7) should be deleted.
7. MINISTERIAL
POWERS—CLAUSES
28(3), 36(4), AND 37(1)
These clauses give surprising, and in my view,
inappropriate and unnecessary powers to Ministers and others.
(a) Clause 28(3) exempts information if "in
the reasonable opinion of a qualified person" disclosure
would prejudice "the effective conduct of public affairs".
This gives Ministers and others extraordinarily wide powers to
decide what should and should not be exempt.
This returns us to the present situation in
which public information is only released at the discretion of
Ministers, and is precisely why we are legislating to replace
such grace and favour by statutory rights. This clause, in effect,
has the potential to undermine the draft Bill.
(b) Clause 36(4) gives unrestricted power
to the Secretary of State to make additional orders to restrict
access and exempt information.
(c) Clause 37 has the strange effect of restricting
access to harmless information whose release is in the public
interest "if any other information (whether or not held by
the public authority and whether or not accessible, or likely
to become accessible, to members of the public) became available
at the same time or subsequently".
As with clause 25, covering investigations,
this clause would prevent publication of harmless material in
a blanket, catch-all way. It is hard to fathom what the drafter
of this clause is seeking to prevent but, whatever convoluted
sets of circumstances were envisaged, the Information Commissioner
should have the power to distinguish between exempt and non-exempt
information when combined and prevent the non-exempt information
being blighted, if that is in the public interest.
8. CONCLUSION. HARM
TESTS, PUBLIC
INTERESTS TESTS,
THE POWERS
OF THE
COMMISSIONER
The Committee has already received evidence
from Elizabeth France that the Information Commissioner should
have "some real teeth" and that, in its present form,
the draft Bill does not legislate for those teeth.
Indeed clause 45(2) states that the Commissioner
"may not require the public authority to disclose particular
information" on grounds of public interest.
The present Code gives the Ombudsman the power
to call for the disclosure of exempt information in the public
interest "unless the harm likely to arise from disclosure
would outweigh the public interest in making the information available".
There are other ways in which the power given
to the Information Commissioner by the draft Bill, to ask a public
authority to reconsider their refusal to release exempt information
on a discretionary basis, could be realised. One would be the
power to issue enforcement notices if, as Mrs France said, "in
spite of iteration . . . the public authority has given what the
Commissioner believes to be the wrong weight to some of the elements".
As she pointed out, her experience as Data Protection
Registrar is that there is seldom need to proceed to enforcement.
The possibility of it is enough to secure compliance.
I share the Home Secretary's view that the rigour
of harm tests should be tailored to the type of information under
consideration but I regret that the tests in the draft Bill are
all weaker than those proposed in the White Paper. I remain uncertain
about how the word "prejudice" will be interpreted.
Being a word which describes opinion or perception, it seems to
be a rather less robust test than "harm".
However I believe that the stringency of any
harm tests is far less important to the effectiveness of the Bill
than the absence of a binding public interest test.
More than any other single element of this draft
Bill, the ability of an independent Commissioner to rule whether
publication of information is or is not in the public interest,
and to enforce that judgement, would convince both the public
and Government that people in Britain had finally achieved the
right to know and that the "fundamental and vital change
in the relationship between government and the governed"
envisaged by the Prime Minister had been realised.
July 1999
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