Select Committee on Public Administration Third Report


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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