Text of a Letter from Mr M J Evans, Deputy
Director General at the DMA, to Mr Robert Cavzer, at the Freedom
of Information Unit, in the Cabinet Office, dated 26 February
1998 concerning the December 1997 Consultative White Paper on
the proposed Freedom of Information Act
1. We would like to respond to the publication
in December 1997 of the Government White Paper on "Your Right
to KnowFreedom of Information", and take up the invitation
to submit some comments on its contents for consideration in the
consultative process on this matter.
2. We are sure that British Industry will
overwhelmingly support this important initiative "to legislate
for freedom of information, bringing about more open Government".
(The Prime Minister's preface to the White Paper). We would agree
with the view (1.1) that in recent years public confidence in
Government has been adversely affected by the climate of over-secretiveness
that many have perceived to pervade "officialdom", and
that a new culture of greater openness is required to counteract
3. We are reasured that the Act will ".
. . contain a list, showing which public authorities and other
organisations are covered, so that there will be no ambiguity
about which bodies are included and which are not . . . "
(2.4), as clarity will be essential right from the start for all
4. We are also convinced as to the positive
benefits resulting from ". . . the pro-active release of
information . . . " (2.18) and the establishment of ".
. . time limits for response. . . [being] . . . set out in the
Act to ensure that applicants do not have to wait an excessive
or unreasonable time for responses." (2.23), the latter of
which we are sure Industry would like to encourage as strongly
as possible being used in other areas of Government (such as the
processing of Export Licence Applications, the speed of which
we would regard as being of far greater importance than requests
5. However, we are convinced that there
is going to be major unease caused for Industry if the White Paper,
and the resultant legislation, fail (in the words of The Chancellor
of the Duchy of Lancaster's preface) to strike "| a proper
balance between extending people's access to official information
and preserving confidentiality where disclosure would be against
the public interest."
6. Amongst the various areas where the proposed
new legislation will affect British Industry is the sphere of
export licensing and controls, in which companies submit information,
much of which is confidential, to the Department of Trade and
Industry, for circulation to the Ministry of Defence and the Foreign
and Commonwealth Office, in support of Export Licence Applications.
7. We believe that the interests and activities
of the Defence Industry in this matter will be most closely linked
to three of the "specified interests governing disclosure"
(3.11), these being: "National Security, defence and international
relations" (3.11(1)); "Commercial Confidentiality"
(3.11(4)); and "Information Supplied in Confidence"
8. We are reassured that the White Paper
specifically refers to commercial confidentiality as being one
of those factors which will govern decisions on disclosure (3.11(4)
and 3.11 (6)) and that reference is made (3.19) to making decisions
". . . not to disclose particular information . . . [which
might] . . . result in substantial harm to . . . the commercial
interests of a third party". However, we also note with some
concern the statement that "Commercial confidentiality must
not be used as a cloak to deny the public's right to know"
(3.11(4)). We are concerned that any provisions regarding this
will be susceptible to being used to pressurise HMG to release
information of a commercially confidential nature.
9. Whilst we are pleased that the White
Paper has taken note of the threat of excessive requests for information
being made (2.25), we are concerned that the new FOI legislation
could result in a large number of requests for information from
members of the public, some of whom may well be associated with
"anti-arms trade" pressure groups or working on behalf
of British companies' overseas competitors, seeking information
about UK defence exports, the revelation of which might well do
some damage to the commercial interests of the companies concerned,
as well as to the UK's international relations with the relevant
10. Despite the reference (2.26) to measures
to try to identify and deal with excessive applications, we are
sure that some of these (especially 4large-scale "fishing
expeditions"and particulary 6large multiple
applications for similar information from different sources which
are clearly designed to obstruct or interfere with the public
authority's business) could present major problems. We are convinced
that some pressure groups could well perceive the latter of the
2 options above as a useful strategy to try to obstruct and delay
the UK's export licensing system, to suit their own purposes.
11. With regard to the UK's international
relations, we also feel that it must be emphasised that companies
do not generally endeavour to keep to themselves information on
what contracts they have won for their own motives (indeed, in
most cases they would want to publicise them), but almost invariably
because the customer concerned has insisted upon confidentiality.
In addition to the potential diplomatic damage on the UK's international
relations, there could be serious commercial implications, because
if customers such as those above, who usually have perfectly legitimate
reasons for requiring confidentiality, perceive that a Freedom
of Information Act in the UK could make it difficult, or even
impossible, to maintain such confidentiality in the future, then
British defence companies will find it significantly more difficult
to do business in these nations, who will simply go to other,
more potentially discreet, supplier nations.
12. We would agree with the recommendation
(2.33) that it is desirable for there to be ". . . a two-tier
charging approach designed to impose higher charges on commercial
and other corporate users of the Act" in comparison to individual
applicants, although we are sure that the viability of this is
questionable. It would be easy for companies to circumvent this
(eg by getting staff to submit applications in their own names
from home) if they wished to do so.
13. We are concerned that the section on
Review and Appeals (5.1-5.19) concentrates almost exclusively
on the rights of appeal when an application for the release of
information has been denied or is being delayed, and that there
is little mention of appeals the other way around, ie when disclosure
has been approved. It is only at the very end (5.19) that a brief
passing mention is given to ". . . a mechanism . . . to allow
third parties to appeal against decisions to release information
which they believe would cause "substantial harm" to
their interests . . ." We are convinced that such a mechanism
will be essential.
14. We would strongly argue that whenever
information is requested that has either been submitted by a third
party, or is about a third party or refers to a third party, that
that third party should be informed at the start of the assessment
as to whether to disclose information or not, so that they can
have some imput into the decision making process. They must certainly
have the right of appeal if it is decided to release information
if they have stated that they would oppose this.
15. We are also concerned at the apparent
lack of clear definition as to what constitutes "substantial
harm" (3.7) or "public interest" (3.3(3) and 3.4),
as these vital criteria will apparently be used to determine whether
release of information should take place or not. These ill-defined
concepts would be a mechanism prone to arbitrary decision-making
by the officials involved. We would whole-heartedly agree that
clear definitions of these will be essential, as stated in the
White Paper (3.4, 3.16 and 3.18).
16. However, we do not believe that these
are the right or viable concepts with regard to commercially confidential
information that has been provided by companies to HMG in confidence.
We would strongly argue that in these cases, when the information
has been provided to Government and may have some commercial confidentiality
implications, that the determination should not be "substantial
harm", but merely "harm", and that "public
interest" must be taken in the broadest possible terms, as
representing the broad economic interests of the UK, through the
commercial interests of the British companies concerned.
17. We would reiterate that it will be essential
in drawing up and implementing the Act, for there to be clearly
established a proper balance between allowing greater access in
information and the essential necessity to safeguard confidentiality.
18. I hope that the above comments may assist
you in your endeavours and consultations on this important matter.