THIRD REPORT
The Select Committee on Public Administration
has agreed to the following Report:—
YOUR RIGHT TO KNOW: THE GOVERNMENT'S PROPOSALS
FOR A
FREEDOM OF INFORMATION ACT
INTRODUCTION
1. In December 1997, the Chancellor of the Duchy
of Lancaster, Dr David Clark, published the White Paper "Your
Right to Know: the Government's proposals for a Freedom of Information
Act". The proposals will which will allow the people of Britain
a legal right to official information for the first time. This
right, Dr Clark wrote, "is central to a mature democracy".
The proposals should, Mr Maurice Frankel, Director of the Campaign
for Freedom of Information told us, "provide a fundamental
break with Britain's tradition of government secrecy and lead
to a Freedom of Information Act comparable to some of the better
overseas Freedom of Information laws".[1]
We agree, and—although we have some reservations about the
detail of the proposals—we welcome the proposed Freedom
of Information Act as a major plank in the Government's proposals
for constitutional reform, and a radical advance in open and accountable
government. It will help to begin to change for good the secretive
culture of the public service. We congratulate Dr Clark on the
proposals.
2. Lack of openness and transparency in British government
have featured in tribunals and inquiries as a contributory factor
in many cases where things have gone seriously wrong. A couple
of recent examples are given in the box on the next page. But
although these cases have attracted a huge amount of political
and media attention, making government more open is something
which should have a serious impact on the daily lives of ordinary
people. In other countries with Freedom of Information laws, most
requests for information are for "my own file". Public
authorities keep a vast amount of information about individuals.
Some of this they can now get access to, under a patchwork of
statutes and codes of practice. Some of it they still cannot get.
Many people may want access to their files in order to pursue
a dispute with a government department or other public authority.
Individuals who are unhappy with the way they have been dealt
with by, for example, the Child Support Agency or the Benefits
Agency, or local Housing Authorities and Social Services Departments
have a strong need to see how the authority concerned has handled
their case.[2] A few examples
taken from recent cases dealt with under the current Code of Practice
on Access to Government Information illustrate why people need
access.
- A couple appealed against the alteration of
the council tax banding of their property and subsequently asked
the Valuation Office Agency (VOA) to disclose the evidence, in
the form of sales prices of comparable properties, which was said
to have underlain the re-banding. VOA refused, saying that such
details could not be released until the appeal was listed for
hearing before a valuation tribunal.[3]
- A man wrote to the Foreign and Commonwealth
Office raising queries about the transcript of an interview with
his wife, relating to a refusal of entry clearance, but received
no reply. Staff at the relevant Embassy had decided not to reply,
due to pressure of work and the fact that the case was to be settled
by appeal.[4]
- An Incapacity Benefit claimant sought access
to "The Medical Adviser's Guide to Incapacity Benefit"
to inform his preparation for a tribunal hearing. Benefits Agency
(BA) refused to release the Guide, saying that it was not available
in the public domain.[5]
THE SCOTT REPORT
"The theme of secrecy runs throughout the Scott Report. It links the refusal to reveal to Parliament the change in the guidelines on the export of military equipment; the insistence that public interest immunity should be sought for policy advice documents regardless of their actual contents; and Scott's criticism of the way in which decisions on arms export license are taken ... we believe that an effective Freedom of Information Act would make a significant contribution to the problems identified in the Report. Above all it would signify a substantial change of culture".
Campaign for Freedom of Information evidence to the Public Service Committee,
HC (1995-96) 313-II, p.97.
THE BSE INQUIRY
"With a problem as important as this [the relationship between BSE and Creutzfeldt-Jakobs disease], the lesson that screams through my own mind about this issue, ... is that it is always a good due process to get a variety of opinions about complicated databases which may have implications for public health... My criticism is the culture of secrecy that seemed to pertain at the time, such that very few groups could have access—if any, none as I am aware—to the information to carry out independent analysis. That would be the lesson that remains in my mind most strongly."
Professor Roy Anderson, University of Oxford, to the BSE Inquiry, 16 March 1998
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FREEDOM OF INFORMATION LEGISLATION ABROAD
1949 |
Sweden
|
Freedom of the Press Act (Amended version of legislation first made in 1766)
|
1951 |
Finland
|
Publicity of Documents Act
|
1966 |
United States
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Freedom of Information Act, as amended
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1970 |
Denmark
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Access of the Public to Documents in Administrative Files Act concerned with public access to documents in administration
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1978 |
France
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De la liberté d'acces aux documents administratifs as amended
|
1978 |
The Netherlands
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Access to Official Information Act
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1982 |
Australia
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The Freedom of Information Act, as amended
|
1983 |
New Zealand
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The Official Information Act 1982, as amended
|
1982 |
Canada
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Access to Information Act, as amended
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1986 |
Greece
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Access to Information Law
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1997 |
Ireland
|
Freedom of Information Act (passed 10 April)
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INFORMATION OBTAINED ABROAD UNDER FREEDOM OF INFORMATION
Canada
· Cabinet instructions to the Royal Canadian Mounted Police on obtaining information about separatist activity in Quebec and about the separatist crisis of October 1970 in general;
· memos and letters dealing with the admission to Canada of the former Iraqi ambassador Mohammed Al-Mashat;
· background studies provided to Cabinet on the economic impacts of free trade;
· Transport Canada audits which showed problems at Air Ontario, the operator of a 1988 downed aircraft that killed 24 people;
· the award of the $1.4 million CF-18 maintenance contract to Montreal-based Canadair Ltd., despite a superior bid by Bristol Aerospace at Winnipeg;
· an environmental study which warned that a large oil spill could be expected in or near Canadian waters every year or two, with coastal British Columbia facing close to half of these spills;
· a 1987 report submitted to Agriculture Canada, which suggested that a $1 billion federal subsidy to grain farmers may have been unnecessary because most Prairie farmers were already scheduled to receive large payments from the Western Grain Stabilization Program.
The Access to Information Act: 10 Years On, The Information Commissioner
of Canada, 1994, pp.17-18.
USA
· Under the Freedom of Information Act tax analyst obtained previously undisclosed tax rulings issued by the Internal Revenue Service in response to letters from individuals and corporations. Congress changed the law to ensure that such rulings were published.
· A company used the Act to show that a competitor had used false information to secure a contract from a government department.
· The Act has been used by Honeywell Information Systems to obtain details of the Department of Defence's procurement regulations.
· New Mexico used the Act to obtain details of the federal government's compliance with environmental regulations applying to the disposal of nuclear waste in the state.
· A pharmaceutical industry trade body regularly uses the Act to request copies of enforcement decisions of FDA inspectors. These are published by the industry in a newsletter as a guide to standards currently being required and as a check on arbitrary decisions.
· The Act was used to show that defence contractors were trying to claim entertainment expenses on procuring contracts from the federal government.
Birkinshaw, Freedom of Information, p.344.
Australia
· Material obtained from the Department of Defence under the Freedom of Information Act "repeatedly contradicted or undermined evidence" presented to a Senate Committee by the Department concerning a proposal to acquire land for training purposes;
· Veterans used the Act extensively to seek information which would assist with a claim or appeal under the Repatriation Act, or with a view to applying for review of pensions decisions.
Standing Committee of the Australian Senate on Legal and Constitutional Affairs,
Report on the Operation and Administration of the Freedom of Information Legislation 1987
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- The Housing Corporation refused to release
to an individual its file of correspondence about him, claiming
that the complaint was "vexatious" although only a single
request had been made.[6]
- The Department of Social Security refused to
release a report on a National Insurance contribution question
to the subject of it.[7]
- The Department of Social Security refused to
release a report of a visiting officer to the person visited.[8]
3. All these cases were investigated by the Ombudsman
after a complaint was made under the Code of Practice; in all
of them the complaint was upheld or partially upheld. But Freedom
of Information should change the culture within the public sector
so that the sort of obstruction that members of the public experienced
in these cases no longer happens. We believe that the proposals,
if implemented as presented in the White Paper, will have three
purposes and effects. Increased access to information will -
- Make it easier for members of the public to
find out what information government holds about themselves.
- Make it easier for politicians, journalists
and members of the public to hold the government to account by
making government cover-ups more difficult.
- Make it easier for members of the public to
participate in an informed way in the discussion of policy issues,
and improve the quality of government decision-making because
those drafting policy advice know that they must be able, ultimately,
to defend their reasoning before public opinion.
We believe that Dr Clark's proposals will begin to
bring about a significant change in the culture of the UK Government.
The sort of information that has been obtained under Freedom of
Information legislation abroad can be seen in the box on the previous
page. Many other countries have introduced Acts dealing with Freedom
of Information over the last fifty years as is shown in the table
on p.x—Sweden's dates back to 1766. There has been discussion
of the introduction of a Freedom of Information Act here since
the mid-1970s, which up to now has produced little result.[9]
A Freedom of Information Act is long overdue.
4. The degree of consultation on the proposals will
be unprecedented in its breadth:
- The Government has committed itself to publishing
the Bill in draft form in the Summer, well before it introduces
the Bill proper in the next session of Parliament, and allowing
time for this Committee to give the proposals "pre-legislative
scrutiny". This is in line with the proposals on the legislative
process in the recent Report of the Select Committee on the Modernisation
of the House of Commons[10].
- It has published a background paper on the proposals,
containing factual material used in their discussion within government.
- It has collaborated in the setting up of an Internet
website for discussion of the proposals.
5. We welcome the breadth of the consultation. We
will ourselves seek to respond by taking oral and written evidence
and reporting to Parliament on the proposals with a view to improving
their content. This report covers the outline proposals as they
appear in the White Paper. After the draft Bill is published,
we intend to consider further how they might work in practice
in the light of evidence we will take. And when the final Bill
is published, we will return, if necessary, to review the response
to our recommendations. In this Report, we have taken a broad
view of the proposals, and have made comments and suggestions
on the areas where we believe they need to be improved.
6. In this stage of these inquiries, we have asked
a wide range of organisations—government departments, agencies,
bodies, councils and many others—for their views on the
White Paper. We are grateful to them for their responses. Others
have sent us copies of their submissions to the Cabinet Office
consultation on the Bill. We have also noted the comments made
through the Internet site. We took oral evidence from Ministers
involved in finalising the details of the White Paper, from the
Parliamentary Ombudsman and Data Protection Registrar, from the
Campaign for Freedom of Information and the consumer organisations.
They are individually listed on p.iv. We are grateful to them
for their assistance. Much of our own oral evidence has been published
on the Internet for the first time. We have also visited Dublin,
which has the newest Freedom of Information Act, and Sweden, which
has the oldest. We are also particularly grateful to our two special
advisers, Professor Patrick Birkinshaw, of the University of Hull;
and Mr Robert Hazell, Director of the Constitution Unit in the
School of Public Policy at University College London.
7. Dr Clark told us that the Government had been
subject to a good deal of pressure to legislate on Freedom of
Information immediately after the election, on the grounds that
if it did not, its will to do so might soon disappear. Dr Clark
resisted that pressure in order to create a better thought-out,
more liberal measure, and we commend him for it.[11]
Even so, the tight legislative timetable may have meant that the
proposals were not as fully considered as they might have been
before the White Paper was published. The Data Protection Registrar,
the Ombudsman and the Northern Ireland Ombudsman told us that
they had not been consulted at that stage.[12]
We have found difficulties with obtaining evidence from the Cabinet
Office because its Freedom of Information Unit has been overworked
in assisting with the drafting of the Bill. Furthermore, we have
some serious doubts, which we discuss below, about whether the
Government has been able to give sufficient attention to the relationship
between the Freedom of Information Bill and the Data Protection
Bill. The Freedom of Information Bill will be an ambitious and
highly complex piece of legislation, covering an enormous range
of different organisations and requiring consideration of a large
number of other Acts. We urge the Government to allow sufficient
time for discussion of the draft Bill, and for its passage through
Parliament, and in particular that the Committee have the opportunity
for full consideration of the draft before the Bill itself is
introduced.
1 Min of Ev, p.28. Back
2 For
these, see Ev. pp.175-6. Back
3 First
Report of the Parliamentary Commissioner for Administration, Session
1996-97, Selected Cases 1997, Volume I, Case A.44/95. Back
4 ibid,
A.17/96. Back
5 First
Report of the Parliamentary Commissioner for Administration, Session
1997-98, Selected Cases 1997, Volume 3, Case A.29/96. Back
6 Cabinet
Office, Code of Practice on Access to Government Information,
1996 Report, p.29. Back
7 Cabinet
Office, Code of Practice on Access to Government Information,
1995 Report, p.22. Back
8 ibid. Back
9 Patrick
Birkinshaw Freedom of Information: The Law, the Practice and
the Ideal, 2nd edn, 1996, pp. 332-3. Back
10 First
Report of the Select Committee on the Modernisation of the House
of Commons, The Legislative Process HC (1997-98) 190. Back
11 Q.80. Back
12 QQ.
195, 261; HC (1997-98) 630, Q.12. Back
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