Memorandum submitted by the Campaign for Freedom of
Information
4. EXEMPTIONS (CONTINUED)
(d) Information supplied in confidence
The application of a substantial harm test to information
supplied "in confidence" should prevent an authority
and a third party withholding information merely by agreeing between
themselves that it is supplied in confidence. There must be an
objective demonstration of harm.
The object of any such exemption should be to protect the
interests of the authority, in continuing to receive information
essential to its work, which it is only able to receive if it
protects its confidentiality. The exemption should not seek to
protect the submitter's interests, which should be addressed
under the provisions on commercial confidentiality or privacy.
The harm test should be that disclosure would:
(a) substantially harm an authority's ability to obtain
information in future from a third party;
(b) which the authority has no statutory or contractual
power to require;
(c) and which the third party has no strong self interest
in continuing to supply, for example in order to influence policy
or obtain some benefit for itself;
(d) and which the authority cannot obtain from elsewhere;
(e) and without which the authority's ability to carry
out its functions would be substantially harmed.
There should be a strong presumption that this provision
will not protect behind the scenes lobbying, where an outside
body is seeking some change in the law or other advantage beneficial
to itself. The provision should also lead to a change in the normal
practice of government consultation, where those responding to
proposals are able to ask for their submissions to be kept confidential,
even where no issue of personal privacy or commercial confidentiality
is involved.
(e) Individual safety, public safety and the environment
We assume it will be relatively rare for information to need
to be withheld on these grounds. Information whose disclosure
might expose someone to risk of attack may in any case qualify
for protection under the law enforcement exemption.
This provision may correspond to measures in existing access
to personal files laws which permit information to be withheld
where disclosure would cause serious harm to the health of the
subject of the record, or to a third party - e.g., by exposing
a child reporting abuse to reprisals from the abuser.
We assume the most likely circumstances in which an exemption
on environmental grounds may be needed is where disclosure might
expose endangered plants or animals to threats from collectors,
for example, by revealing the nesting sites of rare birds.
The proposed public interest test requires that a decision
to withhold information should not harm the interest it is designed
to protect.[52] This
should limit any potential abuse of this provision.
(f) Decision-Making and Policy advice
Our proposals on access to policy advice were set out in
detail in a briefing published shortly before the White Paper.[53]
In outline, this acknowledged that some internal discussions require
confidentiality, particularly where:
(a) they involved the discussion of untested ideas, before
those involved have had the chance to consider whether they are
feasible or desirable, or
(b) they involved frank assessments of how key players
are likely to react to proposals and the tactics for handling
them.
However, there is a much stronger case for the disclosure
of:
(a) of internal discussion and advice after a
decision has been taken and;
(b) of material involving a considered assessment or
exchange about the pros and cons of particular options, so that
the public and Parliament can see the real implications of a new
policy or decision, and judge for themselves whether potential
obstacles have been properly considered and addressed. Knowledge
that such materials may become public is likely to improve their
quality, encouraging a more rigorous and balanced approach to
policy analysis.
Post decisional access to advice is common in New Zealand.
The New Zealand Law Commission, in a report published in October
1997, concluded:
"Since 1982 there has been a fundamental change in attitudes
to the availability of official information. 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".[54]
The potential benefits of greater disclosure have been described
by the former premier of Victoria in Australia:
"FOI is a bit like a compulsory random breath test on
our roads. Motorists are aware of its presence and the ever-present
likelihood of a check. Governments, likewise, are aware of the
prospect of examination of a comprehensive list of documents on
which a decision is based. Because of that the Act has had a significant
impact on the quality of decision making. 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."[55]
We propose that an FOI exemption for such material should
provide that:
- policy advice and internal discussion should generally
be withheld until a decision is taken by released afterwards;
- even after a decision is taken, advice and discussion
could be withheld if disclosure at the time in question
would inhibit the frankness of future discussions to such a degree
that resulting decisions would be damaged. The weight of this
consideration may vary depending on how soon after the decision
the request for access is made;
- in both of the above cases, the public interest
in openness should be taken into account, and material released
where the benefits of openness outweigh the possible harm. A similar
test applies to internal advice under the Australian and New Zealand
FOI laws and the UK's open government Code of Practice;
- factual analysis and expert advice on a technical
issue should not fall within the scope of this exemption at all,
and should normally be available.
The White Paper proposes that policy advice and material
relating to decision-making should be available in some circumstances,
but subject to a lower damage test - that disclosure would cause
"harm" rather than the "substantial harm"
that will normally apply under the Act.[56]
The difference between "substantial harm" and plain
"harm" is not yet clear. However, in an area such as
this, where the traditional view - that all disclosure of advice
is likely to be harmful - is still deeply held, substituting the
lower harm test may reduce the pressure to be rigorous in considering
whether disclosure would cause genuine damage. A stricter test
would not imply that cabinet minutes would no longer be protected
or that "thinking the unthinkable" would cease for fear
of premature disclosure.
A test of plain "harm" should nevertheless still
permit progress to be made. A key question will be how the proposed
public interest test - with its obligation to ensure that decisions
are in line with the objective of promoting accountability - operates
in relation to such information. The way in which the relevant
statutory factors are presented will be important: we hope they
will encourage access wherever possible.
The factors should also acknowledge that the conventions
relating to policy advice are not rigid principles but concepts
which have evolved and relaxed over time, and that the advent
of FOI legislation will itself contribute to these continuing
changes.
For example, the need to uphold the political impartiality
of public officials until relatively recently was taken to require
the anonymity of civil servants. The regularity with which officials
now appear before select committees, the high profile role of
executive agency heads, the Citizen's Charter requirement that
officials who deal with the public wear name badges, and even
the recent decision of the Prime Minister's press secretary to
be identified as the source of his statements to the press, illustrate
the changes in this practice over a short period of time.
These changes have also affected the presumption that the
policy analysis of officials should not be revealed. Important
factors here include the recent changes in the rules on Public
Interest Immunity, which is now claimed only where disclosure
of advice would cause "serious harm";[57]
the former government's acknowledgement that advice could become
available under the open government Code of Practice[58]
and the decision to publish the minutes of the monthly meeting
between the Chancellor of the Exchequer and the Governor of the
Bank of England. These conventions continue to evolve. The White
Paper's announcement that the minutes of meetings between the
Government's Freedom of Information Unit and the Information Commissioner
will be published[59]
represents a further innovation.
An account of the public interest factors relating to the
disclosure of internal advice under the New South Wales FOI Act,
has been given by the NSW Premier's Department:
"The . . . issue is whether the release of the document
would on balance be contrary to the public interest. There should
be no assumption that a document is automatically exempt because
it fits the class [of internal discussion] and therefore release
would on balance be contrary to the public interest. Such documents
are available for access unless the public interest would on balance
be negatively affected by this disclosure at this time . . . .
Factors favouring release will always include the general
public interest in disclosure which promotes accountability. Thus
an applicant has a right to know what government has done (and
perhaps what it intends to do) unless disclosure in this particular
instance would result in greater damage to the public interest.
The public interest usually will be advanced by discussion debate
and criticism of government action . . . .
The general public interest in the openness of administration
may also be stronger in particular cases where the integrity of
actions of the administration is called into question."[60]
We hope the approach will reflect something of the robustness
of the Commissioner who enforces the Queensland FOI Act who, in
a key judgment on policy advice, held:
"I consider that the approach which should be adopted
in Queensland to claims for exemption [on candour and frankness
grounds should be] . . . they should be disregarded unless
a very particular factual basis is laid for the claim that disclosure
will inhibit frankness and candour in future deliberative process
communications of a like kind, and that tangible harm to the public
interest will result from that inhibition . . . .
. . . I respectfully agree with the opinion expressed by
Mason J in Sankey v Whitlam that the possibility of future
publicity would act as a deterrent against advice which is specious
or expedient or otherwise inappropriate . . . .
Even if some diminution in candour and frankness caused by
the prospect of disclosure is conceded, the real issue is wether
the efficiency and quality of a deliberative process is thereby
likely to suffer to an extent which is contrary to the public
interest. If the diminution in previous candour and frankness
merely means that unnecessarily brusque, colourful or even defamatory
remarks are removed from the expression of deliberative process
advice, the public interest will not suffer. Advice which is written
in temperate and reasoned language and provides justification
and substantiation for the points it seeks to make is more likely
to benefit the deliberative processes of government. In the absence
of clear, specific and credible evidence, I would not be prepared
to accept that the substance or quality of advice prepared by
professional public servants could be materially altered for the
worse, by the threat of disclosure under the FOI Act."[61]
Factual and background material
We welcome the White Paper's proposal that factual and background
material should be available, and in particular the suggestion[62]
that in this respect the Government has in mind a provision comparable
to that in the 1993 Right to Know Bill. The relevant provision
proposed that the Bill's exemption for policy advice would not
apply to:
(b) the analysis, interpretation or evaluation of, or
any projection based on, factual information;
(c) expert advice on a scientific, technical, medical,
financial statistical, legal or other matter other than advice
which is exempt on grounds of legal professional privilege;
(d) information relating to decisions taken or proposed
to be taken in relation to the personal affairs of an individual.
This approach is in line with that of a number of overseas
FOI laws. Australia's FOI Act excludes reports of scientific or
technical experts from the scope of the exemption for internal
working documents.[63]
Such reports and the analysis of factual or statistical material
are excluded from the corresponding exemption in Ireland's 1997
FOI Act, while Queensland's FOI law provides that "expert
opinion or analysis" is disclosable.
We also welcome the Government's intention to shortly publish
"substantial factual background to the development of this
White Paper, and the decisions it announces" and the implication
that this publication exemplifies the approach to be incorporated
in the FOI Act in relation to factual material.[64]
52 Para 3.19. Back
53
Campaign for Freedom of Information, Freedom of Information:
Key Issues, December 1997. Back
54
Law Commission. Review of the Official Information Act 1982, October
1997, Wellington, New Zealand, p. 5. Back
55
John Cain, Freedom of Information Review, No. 58, August
1995. Back
56
Para 3.12, point 7. Back
57
This change was introduced by the former government in December
1996, in response to the Scott Report's recommendations. Previously,
PII was claimed for all policy advice, regardless of its contents
or the likely result of its disclosure. Back
58
The Code acknowledges that advice may be disclosed either where
this would not harm the frankness of future discussions or where
the public interest in openness outweighs any such harm. Back
59
Para 7.8. Back
60
New South Wales Premier's Department. FOI Procedure Manual, 3rd
editions 1994. Back
61
Eccleston and Department of Family Services and Aboriginal
and Islander Affairs (1993) I QAR 60. Back
62
Para 3.13. Back
63
Freedom of Information Act 1982, section 36(6)(a). Back
64
Para 3.13. Back
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