TUESDAY 7 APRIL 1998
Members present:
Mr Rhodri Morgan, in the Chair
| Mr Peter Bradley | Mr Richard Shepherd
|
| Mr Ronnie Campbell | Mr Andrew Tyrie
|
| Mr David Ruffley | |
Memorandum submitted by the Home Office
I. Introduction
1. The Home Office welcomes the opportunity to submit a memorandum
to the Committee to assist its inquiry into the White Paper. The
White Paper presents government policy on freedom of information.
This is designed to achieve a proper balance between extending
the public's access to official information, preserving confidentiality
and efficient and effective public administration.
2. This memorandum attempts to answer the specific questions
posed by the Committee. However, the final answers to many of
the questions will only become clear when the broad outline of
the freedom of information scheme is further developed into detailed
instructions for the legislation which will put the scheme into
effect. The memorandum draws attention, where appropriate, to
issues where the further decisions to be taken on the details
of the scheme may affect the viability of the proposals.
3. Turning the broad details in the White Paper into a detailed
Bill is the next stage in the process of the development of the
Freedom of Information Act. The Government will be consulting
on the terms of a draft Bill later in the year.
II. Impact on Department
4. The main impact on the department, apart from the possible
increase in the volume of requests for information (see section
VI below), will flow from the improvements to the access regime
which freedom of information will bring, in comparison with the
Code of Practice on Open Government.
5. The change from class to contents based disclosure, together
with the requirement to provide copies of actual documents, rather
than providing answers and information by letter, will have a
considerable effect on the department. Requests for disclosure
are unlikely to focus on particular single documents and many
of the files in the department are large and bulky. Time and resources
will need to be concentrated on identification and retrieval of
files, identification of documents, consideration of suitability
for disclosure of all or part of documents (this consideration
itself will have to be minuted and discussed and presumably will
not be excluded from disclosure) and formulating the written response
to the request. The proposed timescale for responses will add
to the pressure on resources.
6. The retrospective element in the proposals will also impact
on the department. Records were not, in the past, necessarily
kept in a format which facilitates easy retrieval, or retrieval
in the form which applicants may seek.
7. The department has begun to consider what structures it
needs to put in place to implement the proposals in the White
Paper, though it will not be possible to reach final views until
the draft Bill has been prepared.
III. Exclusions and Exemptions
8. The exclusions and exemptions set out in the White Paper
will need to be more precisely defined for the purposes of legislation.
For example; the exclusion for law enforcement will need to extend
to criminal intelligence held by the police service, which may
not be directly related to a specific investigation or
prosecution. Information related to the security of detained persons,
or of secure buildings will also need to be clearly covered by
exclusions from the proposed scheme. All of these issues should
be able to be included within a detailed draft of a law enforcement
exclusion based on paragraph 2.21 of the White Paper.
9. The department is satisfied that a law enforcement specified
interest will cover other kinds of law enforcement information
which should be disclosed, or not, according to the proposed substantial
harm test. Information such as Home Office circulars to the police
might fall within this category.
10. The international relations specified interest will need
to be interpreted sufficiently widely to include relations with
the Crown Dependencies (Isle of Man, Guernsey and Jersey). These
are not strictly international relations, but the considerations
are much the same. We shall need to consult the Island Governments
about the terms of any exemption.
11. There will need to be a clear definition of what is meant
by "substantial harm" and "public interest".
For example, the "simple" harm test, which will apply
to the policy advice specific interest is fairly clear. A decision
will have to be taken whether or not disclosure will harm the
policy advice process. Whilst acknowledging the case for a more
stringent "substantial harm" test to apply to the other
specified interests, some guidance or definition will be necessary
so that the department can gauge the effect the policy will have
on its interests. Most importantly, final decisions on the repeal
of statutory bars to disclosure (see section IV below) can only
be taken if the effect on the underlying policy relating to the
statute in question, of any repeal under the Freedom of Information
Act, can be properly assessed. Similar considerations apply to
the "public interest" test.
12. Comments on Personal Privacy and Commercial Confidentiality
are set out in sections VIII and XII below.
IV. Existing Statutory Bars to Disclosure
13. The department has begun a review of all legislation
in which it has an interest and which contains a statutory bar
to the disclosure of information.
14. Final decisions on repeal can only be taken when full
details of the Freedom of Information scheme are to hand and a
proper assessment can be made of the effect of repealing these
provisions. No doubt many of these provisions can be repealed.
Others however present more difficulties. It may be helpful to
consider examples:
(i) Section 9 of the Rehabilitation of Offenders Act 1974
prevents a person having access to official records from disclosing
information about "spent" convictions under the Act.
The whole purpose of the Act is to protect the interests of individuals
with "spent" convictions and to ensure that they are
not required to disclose them. The offence provision ensures that
officials with access to this information do not undermine the
purpose of the Act by making the information available to others.
Under the proposed FOI scheme it is, at present, uncertain
as to whether the personal privacy specified interest would be
sufficient to prevent disclosures of this kind. If it is not,
the department might wish to argue that this provision should
be retained on the grounds that the policy of encouraging the
rehabilitation of past offenders should take precedence over freedom
of information.
(ii) Rule 12, paragraph 2, of the Mental Health Review
Tribunal Rules 1983 enables tribunals to withhold from applicants
documents whose disclosure would adversely affect the health or
welfare of the patient or others. This test seems less stringent
than the substantial harm test for FOI and it is likely that,
in the situation of patients detained in hospital on mental health
grounds, this less stringent test should continue to apply.
(iii) There are provisions in the Contempt of Court Act
1981 and the Sexual Offences Amendment Acts 1976 and 1992 which
prevent the disclosure of information which has either been prohibited
by the court (under the Contempt of Court Act) or is prohibited
by statute in order to protect the interests of witnesses. It
seems possible that the exclusion for law enforcement so as not
to undermine the investigation, prosecution or prevention of crime
may be adequate to provide an appropriate level of protection
in these circumstances, but it would be necessary to be certain
that proper protection was maintained if the measures in these
statutes were to be replaced by FOI legislation.
15. The above are examples which illustrate the decisions
which will need to be taken in respect of all legislation which
currently bars disclosure. Some of these measures relate to commercially
sensitive information and these issues are explored more fully
in section XII below.
V. Code of Practice on Open Government
16. The department receives relatively few requests, about
40 to 50 per year, under the Code of Practice. It seems unlikely
that this experience will be directly relevant to the operation
of the FOI Act in the light of the significant differences between
the two schemes.
VI. Volume of Requests
17. It is impossible at present to estimate the volume of
requests that the department will receive under the FOI Act. The
provision of a statutory right to access to information and the
appointment of an Information Commissioner to promote openness
are likely to lead to increased awareness by the public of their
right to access information. The increasing willingness of departments,
including the Home Office, to publish more material, on the one
hand, may satisfy many people's desire to know what is going on,
but on the other hand, may stimulate requests for further information.
18. The Department is looking at the experience overseas,
including information obtained by the Office of Public Service
during the preparation of the White Paper, to see if that experience
could assist in forecasting the effect of FOI on the Department
and its agencies. The Department also has its own contacts in
some relevant countries which it is consulting.
19. Consultations are at an early stage and no forecast can
be offered at present on the cost and staffing implications of
the FOI Act, beyond saying that they are likely to be significantly
higher than that currently needed to operate the Code of Practice.
VII. Fees and Charges
20. The Department is satisfied that the proposed regime
for fees and charges is realistic and workable, though it may
be necessary to consider whether a charge higher than £10
might be appropriate where applications for non personal data
generate extensive work.
VIII. FOI and Data Protection
21. The Data Protection Bill, currently before Parliament,
will implement the European Data Protection Directive in the UK.
Personal data covered by the Directive will be subject to the
disclosure provisions of the Data Protection legislation rather
than the Freedom of Information Act. The Directive will apply
to personal data held on computer and to some paper based systems
as well. Other personal data will not fall within the ambit of
the Data Protection legislation and disclosure will therefore
be subject to the provisions of the FOI Act. An applicant is unlikely
to know the precise form in which the information he seeks is
held by the department. It therefore seems sensible that, to the
applicant, the access procedure to the data should be identical
for both schemes. It also seems sensible that, as far as possible,
the terms under which information is released should be aligned.
The likelihood is that, over time, the Data Protection legislation
will, as a result of phased implementation, increasingly cover
records which may at first fall solely within the FOI legislation.
It seems inappropriate that the policy covering disclosure should
change significantly as a result.
IX. Third Party Notification
22. Provided that the department has the necessary information
to enable it to contact the third party in question, there should
be no difficulties in seeking their consent to disclosure. However,
it is unlikely that organisations and individuals outside the
public sector, and therefore not directly covered by the FOI Act,
would be familiar with the grounds for withholding disclosure
of information. This may lead to the Information Commissioner
or Data Protection Commissioner being involved in a greater proportion
of cases involving third parties.
X. Access Through Private Contractors
23. It is the department's understanding that access to official
information both under the Code of Practice and under the FOI
proposals would be through the department which holds the contract.
XI. Training for internal appeals under Code of Practice
24. All appeals against a refusal to disclose information
under the Code of Practice are handled by a section in the department's
Central Secretariat. This enables the staff concerned to keep
abreast of the decisions of the Parliamentary Commissioner for
Administration and assists the department to apply the scheme
consistently. The epitomes of PCA cases circulated to departments
by the Office of Public Service are a valuable aid in assisting
the interpretation of the Code.
XII. Disclosure of commercially sensitive information
25. A great deal of information is supplied to the department
on "Commercial in Confidence" basis. Disclosure of some
of this information could put a company at a disadvantage commercially
with its competitors. Such information might include costs and
charges, or financial information about a company's commercial
viability. Information of this kind is frequently provided as
part of a procurement process, or through a contractual relationship.
26. In some situations agencies of the department are in
competition with the private sector suppliers (for example, the
Forensic Science Service). Under FOI it is possible that competitors
could gain access to information which would give them a competitive
advantage.
27. In this area there is a need to balance the commercial
position of companies and agencies in, or trading with, the public
sector, and the requirement of transparency in the public sector
and the right of the public to know where and how their money
is being spent. The precise definition of the commercial confidentiality
specified exemption and of the substantial harm test will be of
crucial importance here.
XIII. Internet
28. The department has an Internet site which contains basic
information about the department as well as consultation papers
and other published documents. Most documents are placed on the
Internet at, or close to, the time of publication. The site is
updated as required, but it can be updated three or four times
a week, when necessary.
29. The site is monitored regularly by staff so that requests
for further information about any subject can be passed to the
appropriate officials for action.
XIV. Conclusions
30. The department, in common with others across government,
is increasingly becoming more open. Consultation papers are regularly
published so that the policy making process can be opened up to
a wider range of people. The proposals in the Freedom of Information
White Paper ("Your Right to Know") are a significant
step forward in making government more open. The fact that, as
set out in this memorandum, there are a number of issues which
still need to be decided, particularly in the detail of how the
scheme will work in practice, should not be interpreted as casting
doubt on the proposals. All the difficulties mentioned can be
resolved in a way which will facilitate the proper balance between
openness and effective administration.
February 1998
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