SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS
1. 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 enfranchise all the people of this
country, and will begin to change for good the secretive culture
of the public service. We congratulate Dr Clark on the proposals
(paragraph 1).
2. A Freedom of Information Act is long
overdue. (Paragraph 3).
3. 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 (paragraph 7).
4. 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 (paragraph 9).
5. We have serious doubts that the regime
proposed strikes the right balance between privacy and openness,
or indeed whether it will be workable (paragraph 10).
6. We accept the Data Protection Registrar's
view that preserving the privacy and confidentiality of individuals
is a vital interest, which should be overridden only on careful
consideration and for good reasons (paragraph 16).
7. We recommend that the Government clarify
to what extent it believes that the Data Protection Bill will
work to prevent access by third parties to information about an
individual, and how it is proposed that the Data Protection Bill
is to provide the protection for the individual's right to privacy
against the right to information held by the Government (paragraph
16).
8. We recommend that if the Data Protection
Registrar is really going to provide the only means of enforcing
access to information held by a public authority about oneself
then she should be enabled to fulfill this role at least as effectively
as the Information Commissioner could do under the Freedom of
Information legislation. This means that the provisions in the
Data Protection Bill relating to access to personal information
should give rights of access by individuals at least as great
as those proposed in the Freedom of Information White Paper, and
should avoid placing obstructions in the way of that access (for
example by allowing appeals against the Registrar's decision to
force disclosure) greater than those presented in the Freedom
of Information Bill (paragraph 20).
9. We regret that an opportunity was
not taken to consider joining the Freedom of Information and Data
Protection regimes in order to make a more coherent and more workable
system for access to personal information. We are most unhappy
that the Government has been so vague about the relationship between
the Freedom of Information proposals and the Data Protection Bill,
and that it seems that it has not until very recently got to grips
with the problems involved in reconciling the two (paragraph 21).
10. We agree that a system of appeals
for third parties is essential (paragraph 22).
11. We have been impressed by the breadth
of the White Paper's commitment to Freedom of Information. But
this has made the Government's decision to exclude certain bodies
and classes of information altogether from the scope of the proposed
Act all the more regrettable (paragraph 23).
12. We recommend that information relating
to law enforcement should not be subject to total exclusion from
the Freedom of Information Act. Instead, we recommend that it
should be disclosable, subject to a test of "harm",
rather than of "substantial harm". This would bring
it into line with the existing Code of Practice (paragraph 30).
13. We recommend that information which
consists of legal advice obtained by a public authority, or which
would normally be protected by legal professional privilege, should
not be excluded from the Freedom of Information Act. Instead,
it might be protected by being listed as a separate "specified
interest" which could justify exemption, with the presumption
that any disclosure of a document that was legally privileged
would cause "substantial harm" to the integrity of the
relationship between lawyer and client, and therefore such documents
would be withheld (paragraph 32).
14. We recommend that personnel information
should not be excluded from the Freedom of Information Act and
that the Government should clarify the implications of the Data
Protection Bill on the right of access to personnel records under
Freedom of Information (paragraph 35).
15. We recommend that if any particular
functions are to be excluded from the right of access, there should
be a right of appeal to the Information Commissioner concerning
whether the exclusion had been correctly claimed; the Information
Commissioner should have the right of access to any records required
in order to decide this question; and the exclusion should subsequently
be testable through the courts (paragraph 36).
16. The justification for the exclusion
of Parliament has not been made out. The exclusion may well convey
the wrong impression to the general public, given the purpose
of this legislation. We hope that the Joint Committee on Parliamentary
Privilege will review this question, and we recommend that the
Government re-examine the exclusion of Parliament in the light
of its Report (paragraph 37).
17. We recommend that the Security and
Intelligence Services should not be excluded from the Freedom
of Information Act (paragraph 39).
18. The definition of the "privatised
utilities" within the Act is one of the least clear aspects
of the proposed legislation. We believe that the Bill should be
made to apply more precisely just to companies which are monopoly,
dominant, or franchised suppliers in one of the regulated, "utility"
markets (paragraph 44).
19. We recommend that the Government
should make this point clear in their response to this Report
(paragraph 45).
20. We recommend that there should be
provision to ensure that the Act will be brought into effect in
Scotland in relation to devolved matters as soon as it comes into
effect in the rest of the UK, to ensure that there would not be
a lengthy period in which Freedom of Information will not apply
to devolved matters in Scotland (paragraph 46).
21. We recommend that bodies subject
to the Act should be obliged to publish a detailed booklet covering
the role of the body, how it works, the type of records it holds,
and its policies on disclosure of documents and that they should
be under a statutory duty to advise and assist requesters to narrow
and define the information they want (paragraph 49).
22. We recommend that public authorities
should be required to make available existing indexes to their
records, where it is practicable to do so; should be required
to create indexes to new records; and should be encouraged to
create indexes for old records. We accept that this need not be
in the Bill itself, but we recommend that authorities should be
obliged to prepare a strategy for cataloguing their records (paragraph
50).
23. We recommend that there should not
be an access fee either in the Freedom of Information Act or in
the Data Protection Act; that authorities should continue to be
allowed to charge reasonable fees along the lines of the scheme
in the White Paper, based on the time taken to deal with a request;
that the Government should consider introducing a standard hourly
access charge, for all the bodies to which the Act will apply;
that simple requests, dealt with within a certain time, should
be free (and that multiple requests can for those purposes be
dealt with together so it cannot be claimed that they should all
be free); and, as in the existing proposals, that all charges
for personal information should be capped at a low level—less
than £10—in effect meaning that they are waived in
most cases (paragraph 55).
24. We recommend that there should be
only a single set of charges laid down, and no discrimination
between commercial organisations and others in the fees demanded
(paragraph 56).
25. We believe in general that Crown
Copyright should be used selectively, to ensure that material
that is primarily of use to commercial organisations can still
contribute to departments' income, while publications that are
of use to the general public (and particularly publications that
assist in the Government's duty to be open and accountable to
the public and to Parliament) are widely and very cheaply available
(paragraph 57).
26. We believe that there is no reason
why public sector contracts with private sector organisations
for the delivery of goods and services should not be available
under Freedom of Information (paragraph 64).
27. We believe that where commercial
confidentiality is claimed, the public authority concerned must
justify it. (Paragraph 66).
28. We recommend that the Government
clarify what is meant by the "raw data and factual background
material which have contributed to the policy-making process",
and when it might be made available—whether only after the
decision on the policy is taken (and if so, how long after) or
before the decision is taken (paragraph 70).
29. We would welcome clarification from
the Government as to whether the policy advice exemption is intended
to apply to all public authorities, and if so, whether it is intended
to be based on a test of "harm" or "substantial
harm" or, if not, how 'Government' is defined for the purpose
of the exemption (paragraph 73).
30. 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 (paragraph 74).
31. 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 (paragraph
76).
32. 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 (paragraph 80).
33. 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 (paragraph 82).
34. We recommend that the Chancellor
of the Duchy of Lancaster should, in his response to this Report,
correct the statement in paragraph 5.7 of the White Paper relating
to the independence of the Ombudsman—and cease to draw the
wrong inferences from it (paragraph 85).
35. We recommend that the Government
review the system of public sector complaints authorities in the
UK with a view to bringing them together—or at the very
least making it easier for people to complain without having the
difficulty of working out precisely which complaints authority
they need to deal with (paragraph 89).
36. We recommend that a Select Committee
be established to examine the reports of the Information Commissioner;
or that the function be added to those of this Committee (paragraph
90).
37. 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 (paragraph 93).
38. 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 (paragraph 94).
39. 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 (paragraph 95).
40. We recommend that the expertise and
assistance of the Public Record Office should be made available
to these bodies as well as those which it is obliged to help (paragraph
104).
41. If phasing in of the Act is eventually
judged to be necessary, we regard it as preferable that it is
those bodies which are not presently subject to a general set
of access provisions which should be permitted a period to prepare
themselves for the Act. In the meantime, existing statutory rights,
where they apply, should continue to apply as far as these bodies
are concerned. These bodies should be obliged to take steps during
this period to prepare to open up their files (paragraph 107).
42. We recommend that the Government
is obliged under the Act to publish an annual report on its operation
(paragraph 110).
43. We recommend that the Cabinet Office
needs to place continuous pressure on departments to promote the
pro-active disclosure of information by public authorities, and
to create a general disposition to disclose; and to encourage
authorities to use to the full the possibilities of information
technology in the process (paragraph 111).
44. We recommend that the Government
should seek to appoint to the position of Information Commissioner
someone who has demonstrated the necessary toughness and independence.
We recommend that this Committee be consulted on the appointment,
and we would propose to take evidence from the Government's preferred
candidate (paragraph 112).
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