THE CODE OF PRACTICE AND THE WHITE PAPER
COMPARED
8. The Freedom of Information Act will replace the
non-statutory Code of Practice on Access to Government Information
which was introduced with effect from April 1994. The then Government
preferred it to a statutory access regime mainly on the grounds
that "to introduce the courts with a general remit to safeguard
the provision of information disclosure and transparency would
in some way confuse and diminish accountability of Ministers and
departments to Parliament".[13]
The White Paper proposals represent a considerable step forward
in the following respects:
- The Code of Practice has no legal force; the
proposed Act will give the citizen a statutory and legally enforceable
right of access to information ;
- The Code of Practice covers only those bodies
subject to the jurisdiction of the Parliamentary Ombudsman—principally
government departments, executive agencies and some non-departmental
public bodies; the proposed Act will cover the entire public sector
and some private bodies;
- The Code of Practice gave access only to "information",
meaning that it was possible to withhold documents themselves;
the proposed Act gives a right of access to documents or information;
- Under the Code, public bodies could prevent disclosure
by pleading (in most cases) that it would cause "harm";
under the proposed Act they will have to be able to prove (in
most cases) that disclosure would cause "substantial harm",
a much more difficult test to pass;
- Under the Code of Practice, requesters could
complain via a Member of Parliament to the Ombudsman against a
department's decision to withhold information. The Ombudsman,
however, had no power to make a binding decision. The Freedom
of Information Act will introduce an Information Commissioner
who will be able to order departments to disclose information.
9. In just a few respects, though, the proposals
in the White Paper may reduce the extent to which access
was allowed under the Code, in particular because of the decision
to exclude some bodies and types of information altogether.
- Information whose disclosure could prejudice
the administration of justice, legal proceedings etc, was subject
to an exemption in the Code (4a), but with a rider that where
prejudice is referred to in the Code, "the presumption remains
that information should be disclosed unless the harm likely to
arise from disclosure would outweigh the public interest in making
the information available". Under the White Paper proposals,
such information is to be completely excluded from the Act;
- Information whose disclosure could prejudice
the enforcement or proper administration of the law, including
the prevention, investigation or detection of crime was also subject
to an exemption in the Code (4b). But as before, there was a rider
that where prejudice is referred to in the Code, "the presumption
remains that information should be disclosed unless the harm likely
to arise from disclosure would outweigh the public interest in
making the information available". Under the White Paper
proposals, such information is to be completely excluded from
the Act;[14]
- Information relating to immigration, nationality,
consular and entry clearance cases was subject to an exemption
in the Code (5). But the Code said that information would be provided
"where there is no risk that disclosure would prejudice the
effective administration of immigration controls or other statutory
provisions".[15]
Under the White Paper proposals, information relating to the law
enforcement function of the Immigration Service will be completely
excluded from the Act.
We comment in detail on the individual exclusions
from the proposed Act later in this Report; but we are disappointed
that the exclusion of some—albeit only a few—areas
completely from the risk of disclosure under the Freedom of Information
Act means that the Act will in some points be inferior to the
Code of Practice. We consider this to be unacceptable.
13 Mr Roger Freeman, Chancellor of the Duchy of Lancaster,
quoted in the Second Report of the Select Committee on the Parliamentary
Commissioner for Administration HC (1995-96) 84, p.x1. Back
14 Exemption
4b under the Code; see para. 2.21; although as the Attorney General,
Director of Public Prosecutions. Police and CPS were not subject
to the Code the effect of this would have been reduced. Back
15 Exemption
5 under the Code; see para. 2.21. Back
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