THE PUBLIC INTEREST TEST
74. The White Paper accepts that there is a risk
that decisions on disclosure arrived at through applying the harm
test or substantial harm test may, while justifiable, "not
necessarily be consistent with the public interest (whether the
outcome is to disclose or to withhold information)". There
already exists what has been known as a "public interest
override" under the Code of Practice. The Code says that
"it should be considered whether any harm or prejudice arising
from disclosure is outweighed by the public interest in making
the information available".[110]
The White Paper proposes to make the judgement on the public interest
a clearer one, first by creating as a "separate, identifiable
step in the FOI process" a system of checking the decision
on disclosure against the public interest, and second, by making
an attempt in the Bill "to increase the clarity and certainty
of individual decisions by defining what constitutes the public
interest".[111]
We welcome the commitment to make a public interest test an
identifiable stage in the process of dealing with a Freedom of
Information request, which, we believe, will help to concentrate
minds within departments on the need for considering the public
interest in each case.
Defining the public interest
75. Defining the "public interest" is anything
but easy. As the White Paper admits, "no single factor can
be said to constitute the 'public interest', nor can the outcome
of conducting a public interest test be predicted in advance;
a case-by-case approach will be necessary". It does, however,
propose three rules of thumb by which "public authorities
can seek to ensure that decisions under FOI safeguard the public
interest"—at least as a preliminary stage. The first
is to check that the decision on whether or not to disclose, resulting
from the substantial harm test "is not itself perverse"—would
a decision not to disclose information itself result in substantial
harm to public safety, the environment, or a third party? Public
authorities then must ensure that the decision is in line with
the overall purpose of the Act, to encourage government to be
more open and accountable, or if not, that there is a clear and
justifiable reason for it; and, finally, that the decision is
consistent with other relevant legislation.
76. These three tests do not in any sense constitute
a definition of the public interest. The second of them, though,
might be said to imply one. The Campaign for Freedom of Information
proposes that the purpose of the Act should be more specifically
set out, perhaps through a "purpose clause" in the Act,
something which is common in Freedom of Information laws in other
jurisdictions. It suggests that it should include:
(a) "the need to ensure that public authorities
are held accountable for their actions through effective scrutiny;
(b) the need to make available in advance of
a decision sufficient information for the decision to be discussed
fully and influenced;
(c) the conventional law of confidence 'public
interest' test. This applies where there has been misconduct or
danger to the public or the environment. In such circumstances,
the courts will consider whether the disclosure of confidential
information is justified in the public interest".[112]
We agree that there should be a clearer exposition
within the Act of what constitutes the "public interest",
in order to give general guidance to departments and the Information
Commissioner. It should cover not only openness and accountability,
but should also cover possible dangers to the public or the environment,
wrongdoing or waste, inefficiency in providing public services
or possible serious injustice.
The public interest and the Official
Secrets Act
77. The need to test whether disclosure is consistent
with other legislation carries an implication which may contradict
the openness and accountability which is intended to be the purpose
of the Act. The White Paper says that in particular, the Government
is concerned "to preserve the effectiveness of the Official
Secrets Act, and there may in some cases be a need to ensure that
a decision taken under the FOI Act would not force a disclosure
resulting in a breach of the harm tests that prohibit disclosure
under the Official Secrets Act".[113]
78. The Official Secrets Act makes it an offence
for anyone to disclose information "without lawful authority"
if the information is likely to cause "damage" to a
set of specified interests—defence, international relations,
investigation and prevention of crime. What constitutes damage
is further set out in the Act—for example, something that
"endangers the interests of the United Kingdom abroad, seriously
obstructs the promotion or protection by the United Kingdom of
those interests or endangers the safety of British citizens abroad".[114]
The Government argues that the Freedom of Information Act will
"need to be drafted so that any information which is protected
by the criminal sanctions of the OSA will be exempt from disclosure
under the FOI Act. In other words, there should be no possibility
of a successful defence against a prosecution under the OSA that
disclosure of the protected information in question was nevertheless
'authorised' by the access rights of the FOI Act".[115]
79. In the main, the Government argues that this
will not be a problem. The exclusions and exemptions proposed
in the Freedom of Information White Paper are equivalent to the
coverage of the Official Secrets Act: "the harm tests under
the Official Secrets Act are tightly defined in terms of specific
outcomes and are sufficiently stringent that they would readily
count as amounting to the Freedom of Information Act's 'substantial
harm' if breached".[116]
In other words, the tests in the Official Secrets Act and those
in the Freedom of Information Bill are equivalent. The Campaign
for Freedom of Information do not agree. The test relating to
international relations under the Official Secrets Act is whether
a disclosure of information would "endanger" the interest.
It is not clear, they say, that this is the same as "substantial
harm"—it could, in practice be a much lower test, if
"endanger" is held to cover the damage caused to the
UK's relations with another state caused (for example) by a breach
of confidence.[117]
80. Furthermore, the White Paper suggests that application
of the public interest test under the Freedom of Information Act
may result in disclosure of information which, under the Official
Secrets Act, would not be released. The factual background paper
suggests that "one way of ensuring that this possibility
is closed off would be explicitly to disallow the FOI Act's public
interest override if (but only if) it conflicted with the protection
provisions of the OSA".[118]
This point seems to us to be dangerous. In effect, it means that
there will be no public interest override over the Official Secrets
Act: furthermore, where the Official Secrets Act applies, there
will be no opportunity to test whether there might be a greater
public interest in the authorised disclosure of the information
than in withholding it. We note that there will be no opportunity
either to use the rights contained in the Public Interest Disclosure
Bill to allow disclosure in the public interest of information
covered by the Official Secrets Act.[119]
If the Official Secrets Act is allowed to determine the way
in which decisions are made under Freedom of Information, it could
easily become the means by which public authorities are able to
cover up their mistakes.
81. Is it really necessary to "disallow"
the public interest test where there may be a conflict with the
Official Secrets Act? The public interest test is designed to
ensure that the decision is in line with the overall purpose of
the Act, to encourage government to be more open and accountable,
unless there is a clear and justifiable reason for an exception.
It will be up to the Information Commissioner, on the basis of
submissions from the public authority concerned and from the requester,
to arrive at a reasonable decision that balances the public interest
in disclosure against the public interest in withholding the information.
The fact that the disclosure would cause damage to the various
interests protected under the Official Secrets Act seems a clear
and justifiable reason which the Information Commissioner would
in principle uphold.
82. The Official Secrets Act of course concerns "unauthorised"
disclosures. Any disclosure under the Freedom of Information Act
(particularly where they relate to the difficult areas covered
by the Official Secrets Act) would in any case have been properly
authorised at an appropriate level. Authorised disclosures are
already made now which would have constituted grounds for a prosecution
under the Official Secrets Act if they were unauthorised. It is
arguable that the reason why some disclosures may be an offence
under the Official Secrets Act arises from their unauthorised
nature rather than any actual damage they may cause. We recommend
that the interests protected by the Official Secrets Act should
not prevent disclosure if disclosure is not capable of being prevented
either under the harm tests or public interest tests.
110 1997 edition p.5. Back
111 para.
3.18. Back
112 Min
of Ev. p.40. Back
113 para.
3.19. Back
114 Section
3. Back
115 Background
material, para. 138. Back
116 ibid,
para. 141. Back
117 Unprinted
evidence (CFI submission to the Cabinet Office). Back
118 para.
142. Back
119 See
Section 43B(4) inserted into the Employment Rights Act 1996 by
Clause 1 of the Bill: "A disclosure of information is not
a qualifying disclosure if the person making the disclosure commits
an offence in making it". Back
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