House of Commons - Public Administration

Select Committee on Public Administration Third Report

A FREEDOM OF INFORMATION ACT AND OTHER LAWS

91. The White Paper refers to the many other statutory provisions which either permit or prevent disclosure of information held by the Government. Two of the Acts concerned—the Official Secrets Act and the Data Protection Act—are dealt with separately in this Report. Here we consider briefly the effect of the Freedom of Information Act on the many others. The White Paper says it is intended that "where appropriate and consistent with European Community legislation ... the Act should repeal or amend the many existing statutory bars to disclosure first identified in the 1993 Open Government White Paper, bringing them into line with the harm and public interest tests".[138] The 1993 White Paper identified some 200 of these. Most of them prevent the disclosure of information obtained in the course of various regulatory or monitoring functions.

92. Some public authorities regard it as essential for their proper operation that they can continue to prevent the disclosure of this sort of information, and will wish to ensure that if the legislation that allows them to withhold that information is repealed, the Freedom of Information Act will continue to protect it from disclosure.[139] As the Government's background paper says, the general principle behind these provisions is unexceptionable: but more open to question is "whether the law as it has developed over the years has always got the balance right between the interests of the providers of the information and the wider public interest there may be in disclosure".[140] Few of these provisions contain a harm test, and therefore it would be a criminal act to disclose the information even if no actual or potential harm would follow. It discusses whether the legislation should be replaced wholesale by a single clause, or amended on a case-by-case basis. The background paper appears to indicate that the latter is preferred: it would "leave in place safeguards against disclosure that Parliament has thought necessary in the past, until their continuing need has been reviewed on a case-by-case basis".[141]

93. No doubt it is important for certain specific protections to be retained; but unless they are repealed, large areas of government activity will continue to be effectively excluded from the Act. We accept that wholesale repeal is unlikely to be a realistic or sensible option. The Campaign for Freedom of Information advance the case for a simple override of other instructions on access to information, although it accepts that special provision may be needed for some statutory restrictions which prohibit the disclosure of highly sensitive personal information.[142] We are uncertain that such a scheme is the best way of proceeding, as it still involves the consideration of all the relevant provisions to test whether they involve "highly sensitive personal information", and could create some uncertainty. If, however, each of the provisions needs to be reviewed individually, and a decision taken on whether they should be preserved or repealed, then it is important that the process is pushed forward. In some other FOI regimes, the momentum of the review of existing legislation has not been maintained. We support the proposal, tentatively advanced in the Government's background paper, that there should be an order-making power in the Freedom of Information Act enabling the repeal or amendment of provisions not repealed in the Act to be achieved by affirmative order. We believe, though, that there should be some system to ensure that the pressure for this is maintained, and propose either that there should be a date by which all the provisions must be reviewed or else they are automatically repealed; or there should be some form of Parliamentary scrutiny of the provisions, perhaps by means of a Committee of the House which could be given the function of reviewing non-disclosure provisions with a view to recommending repeal or retention. Such a Committee might deal with the individual provisions in a similar way to the way in which the Deregulation Committee deals with Deregulation Orders.

94. There are also numerous statutory provisions which either permit or require the disclosure of certain other information held by public authorities.[143] In the case of the 80 or so pieces of legislation which give authorities discretionary power to disclose information, the Freedom of Information Act will, the background paper says, simply "overlay" the discretionary powers with an access right, otherwise leaving them unchanged. Where legislation requires disclosure (the examples given are the Local Government (Access to Information) Act 1985 and the Environmental Information Regulations 1992), the Government is considering whether to subsume these provisions within the Freedom of Information Act, or to leave them to stand. As it says, "there is a clear presentational advantage—and from the applicant's point of view a clear practical advantage—in having the previous 'patchwork' of access rights subsumed within a single FOI Act".[144] Nevertheless, there will be concern that in the process of doing so, some rights of access may be lost. The Guild of Editors refer in particular to section 17 of the Local Government Finance Act 1982, which gives public rights of access to all documents relating to a local authority's accounts during the audit period: "the material which has been made available under this Act ... might be lawfully refused under the proposed Freedom of Information Act for a number of reasons: it could fall outside the scope of the Act; the request would fail the gateway reasonableness tests ...; the material might fail the substantial harm test".[145] We support the idea in principle of bringing all access rights, so far as possible, into line, and recommend that other statutory access rights be brought together under the Freedom of Information Act. But we recognise that this process, if done on a wholesale basis, may result in certain rights of access being lost. We recommend therefore that this material be reviewed by a Committee of the House as we have suggested for provisions restricting access to information.

95. We have some concerns about the effect of EU law on the rights to be given under the Freedom of Information Act.[146] As the Government has said, "where, as in the case with the Environmental Information Regulations, the statute is designed to implement EU law, it would of course be necessary to ensure that the relevant part of the FOI Act fully reflects that law".[147] Where the Freedom of Information Act attempts to go beyond the rights given under an EC Directive, or where there is an inhibition on disclosure contained in a statute based on a Directive, there may be further (and currently unknown) limits to the degree of openness provided under the Act. We recommend that the Government publish the results of its review of statutory provisions inhibiting disclosure or requiring and permitting disclosure, and indicates which of these are based on EU requirements, and the extent to which it considers it possible to override them in the Freedom of Information Act.

96. One complex area is the accessibility of exchanges of documents between the UK Government and other, international, or foreign organisations. The White Paper proposes protection for "the integrity of communications received in confidence from foreign governments, foreign courts or international organisations".[148] This is a standard exemption provision found in other FOI legislation to protect the conduct of international relations: the UK Government must be able to offer safeguards to secure a continuing supply of information from foreign governments and international organisations. But two special features deserve mention. One is whether after devolution the devolved governments in Scotland, Wales and Northern Ireland should expect a similar degree of protection for the information they supply to the UK Government, similar to the exemption in federal systems for the conduct of federal-state relations. This can mean that little or no such information is released; but the overriding public interest test should help to ensure that only truly sensitive information is protected.

97. The second special issue is the supply of information to and from the EU. A Freedom of Information regime already applies to the EU; but its restrictive nature may work to prevent information becoming available through the UK. UK law has to be consistent with EC law and is interpreted in the light of EC provisions, even where UK laws predate EC Directives and the Directives in question are not directly effective in UK law. However, EC law has provided for an access to information regime covering Council and Commission documents.[149] This exempts documents in order to protect the confidentiality of proceedings of the Council and the Commission.[150] Documents are subject to a mandatory exemption (which arguably is closer to an exclusion) where disclosure could (not would) undermine the protection of the public interest.[151] Documents written by third parties (for example the government of a Member State) are also excluded from the regime and requests must be made to that third party.[152] Could the EC regime inform the approach of UK authorities to such requests when made to the UK 'author' of the document? Or would the EC regime influence the attitude of UK authorities in releasing other EC documents in their possession? If so, then this will probably result in a less liberal attitude than under the proposed Freedom of Information Bill.[153] The EU Ombudsman has managed by negotiation to extend the Code de facto to a wider range of EC bodies, including the EC Parliament and the ECJ is discussing a possible extension of the European Code to its own documents even though the latter is not within the jurisdiction of the European Ombudsman. (The European Ombudsman has said that a failure to adopt proper rules on access to information could amount to maladministration). The Amsterdam Treaty elevated the Freedom of Information question to a Treaty provision (new Article 255) stating that principles and limits would be set out in an act made under Article 251 and each institution covered by the provision: the Council, Commission and the European Parliament would elaborate specific provisions in its own Rule of Procedure.[154] This will take several years to achieve and there is no guarantee that the regime will be any more liberal than at present. We visited Sweden in May in order to discuss this point (among others), and we will return to it in our next report on the draft Bill.