ANNEX 2
Note of a meeting at the Cabinet Office on 1 April
1998 between The Clerk of the Committee; Professor Patrick Birkinshaw
(one of the Specialist Advisers to the Committee); Professor James
Cornford (Special Adviser to the Chancellor of the Duchy of Lancaster),
Mr Charles Ramsden (Head of the Freedom of Information Unit);
and Emma Louise Avery (HEO(D), Freedom of Information Unit).
The meeting was proposed by the Chancellor of the
Duchy of Lancaster as a response to the questions sent by the
Clerk of the Committee to the Freedom of Information Unit. The
Questions were dealt with in turn, as they related to the White
Paper.
Chapter 2
1. Private organisations insofar as they carry
out statutory functions are to be included in the scope of the
Act. Can you list some of the organisations and functions that
are meant?
The organisations involved will include (for example)
Group 4; adoption societies; tax and debt collectors on behalf
of local authorities, organisations carrying out functions under
the Deregulation and Contracting Out Act.
2. How will privatised utilities be defined?
3. Will utilities which have never been in
the public sector (for example some of the smaller water companies)
be included? If not, why not?
There are a number of possible definitions of utilities,
including organisations subject to the Windfall Levy, operating
under regulation, providing monopoly or near-monopoly services,
network companies or some combination of these. In addition, the
Government has now published its Green Paper on utility regulation,
which explores issues of ensuring openness in the utility companies
through their regulators. Perhaps surprisingly, the consultation
process involved some utility companies proposing a narrow definition
(to exclude themselves) but some a wider definition (to include
their entire industry on "a level playing field"). Ministers
have not yet taken a view on the precise extent of the provision.
4. It is proposed that where the Act incorporates
and supersedes certain existing statutory access rights which
only give access to records after a specified date, there will
not be a fully retrospective right of access, as there will be
in the case of other records. Why is this necessary?
The proposal incorporated in the White Paper was
largely drafted to deal with the Access to Health Records Act
1990; it was thought not to be feasible to open up pre-1991 Health
records. But it had become clear that the Data Protection Act
will cover pre-1991 health records, thus opening up subject access
to them anyway. This is one instance of the expanding coverage
of Data Protection. At first it was thought that it would be possible
to leave Data Protection and Freedom of Information as overlapping
regimes; but now legal opinion took the view that overlap was
likely to result in too complicated a system for both applicant
and public authorities.
5. What rights of access to personnel files
currently exist, or will exist under the Data Protection Bill?
It's impossible to give a definite answer to the
second question at present. The legal interpretation of the Directive
and Act together is complex and depends on certain definitional
issues. The question of whether personnel files are covered by
the Bill is likely to depend on their nature and structure: at
least some will probably be covered.
6. How do you propose to distinguish between
administrative and law enforcement functions of the police and
other bodies? How will these be defined?
This is not too difficult in the case of the courts,
as there is a clear divide between the functions that are the
responsibility of the judiciary, and other functions which are
carried out by the administrative staff. It's more difficult in
the case of police, because all the functions are carried out
by police officers. One possibility under consideration is that
you simply exclude information relating to certain functions under
the law enforcement exclusion, thus rendering the administrative/other
functions distinction unnecessary.
7. The White Paper refers to the law enforcement
functions of the police, prosecutors, and 'other bodies', such
as the DSS and the Immigration Service. There are many other bodies
with such functions, including local authorities, and many quangos.
Dr Clark told the Committee in December that the exclusion
will not cover bodies responsible for enforcing environmental
or safety legislation. Can you give further details on which bodies
will be excluded in relation to law enforcement functions, and
which will not?
The bodies themselves are not going to be excluded
(Dr Clark's answer was to the proposition that the law enforcement
bodies would be excluded, not their functions); but the activity
or the functions concerned probably will be. A number of departments
have asked for exclusions for various regulatory functions - but
these will normally be covered by existing statutory prohibitions.
In that case, OPS took the view that an exclusion (as in paragraph
2.21 of the White Paper) was not needed: such functions would
simply need to continue with their current statutory bar to disclosure.
There might nonetheless be instances where particular difficulties
had been caused in the past by a public body being prevented by
law from disclosing information, and here removal of the statutory
bar might be a step forward, even if the relevant information
was not disclosable under FOI.
8. Para. 2.22 says that FOI will not cover
legal advice obtained by the Government from any source. Is it
intended that this exclusion will not apply to other public authorities
as well as central government departments?
The policy is to ensure that as much of the Bill
as possible will apply to all bodies that are covered by it.
9. The same paragraph says that FOI should
not disadvantage the Government in litigation. Will the exemption
for legal professional privilege not achieve this? Why is it necessary
to exclude 'legal advice ... from any other source'?
The policy was to cover legal advice as securely
as possible. The Cabinet Sub-Committee was clear that the Bill
should be more open than the Code. But there were severe restrictions
on access to legal advice under the Code toothe exemption
for legal advice was not subject to harm and public interest tests.
Another issuewhich applied to the exclusions more generallywas
that if there were not to be an opportunity for review the Committee
decided that it was pointless to have an exemption that was so
tight that it was really an exclusionso it went for an
exclusion. But then if there is not an opportunity for review
of whether the exclusions are properly claimed there may be considerable
scope for abuse by bodies holding a mixture of included and excluded
information. It is likely that Ministers will need to decide whether
the Information Commissioner should be able to take a view on
whether the exclusion is properly claimed. Otherwise it may be
argued that the exclusion is unacceptable.
10. Will government departments and other
public authorities be expected to make available indexes of the
records they hold?
Filing records will be available under Freedom of
Information; but the White Paper does not specifically propose
that indexes should be created for the purpose of Freedom of Information.
The right given in the Canadian system to access to the records
themselves has meant a huge emphasis on listing.
11. Will the Government expect to give guidance
to authorities concerning what might be regarded as 'disproportionate
cost'?
It is not yet clear, given the very wide proposed
coverage of the Bill, whether guidance on disproportionate cost
is likely to be helpful. For much the same reason, the terms may
not be defined on the face of the Bill. On that basis, case law
would determine what is regarded as "disproportionate cost"
in the same way as effectively happens under the Code of Practice.
12. HSE say in their memorandum to the Committee
that they currently waive the £10 fee permitted under the
Data Protection Act because accounting rules mean that it costs
more than £10 to bring that amount to account. Do you know
whether any other bodies have this difficulty?
Other bodies have also said in the consultation process
that it will not be worth collecting the £10 fee. The £10
fee was settled on in order to match the fee in the Data Protection
Act. If it acts as a deterrent, then some bodies may want to keep
it, even if it doesn't cover the cost of collection. The important
point, though, is that no one should pay more than £10 for
access to their personal information.
13. HSE estimate that the White Paper proposals
will result in additional costs to them of £3.32m. This throws
into doubt the Government's estimate of a total £10m cost
p.a. across central government. Do you accept HSE's estimate of
costs?
HSE have consistently given substantial estimates
of its costs in dealing with FOI requests and these were taken
into account in preparing the costs which appear in the FOI background
material and which the Ministerial Committee considered. On this
basis, it was recognised that HSE's estimated costs formed a significant
proportion of the total estimate and the figures quoted are therefore
potentially compatible. Costing FOI is not a precise science,
not least because of the difficulty of separating out what is
specifically a Freedom of Information request from ordinary contacts
with members of the public. (The annual monitoring reports for
the Code of Practice show the vast difference between the numbers
of contacts with members of the public and the number that specifically
mention the Code itself).
14. Applications for information which it
is intended to be published at a further date may be treated differently
from others. Will there be a time limit to thisfor example
if it has not been published within two months?
It is unlikely that there will be a time limit. The
White Paper says that some indication should be given of when
publication is expected: that will provide requesters with a timescale
so that they have an opportunity to come back to the authority
concerned.
15. How would a two-tier charging regime sit
with the philosophy that FOI is 'purpose-blind'? Will you distinguish
by the motive or the status of the requester? How will you deal
with charities and pressure groups (many of which are incorporated);
small (as opposed to large) companies; partnerships?
Responses to the consultation process have been mixed
on the two-tier charging proposals. There is certainly a fair
bit of support for it; but even some of its supporters acknowledge
that it poses some very difficult problemseg. how do you
prevent abuse by corporate interests applying through individualsfor
which no one had any very good solutions.
16. How do you propose to define 'tradeable
government information'? What controls will there be over charges
for such information?
This is one of the most difficult issues. The overlap
between most of the tradeable information and what is generally
regarded as Freedom of Information material is not very great,
but there is no clear means of distinguishing between them. The
definition may be simply information on which Crown Copyright
is asserted. This issue is being considered extensively as part
of the Review of Crown Copyright.
Chapter 3
17. The White Paper says that openness should
be the guiding principle in the contractual arrangements of public
authorities. Does this mean that contracts in which a public authority
is one of the contracting parties will normally be made publicly
available? If not, what sort of information on contracts is it
proposed to make available?
The minimum aim is essentially the same level of
disclosure as set out the Code and part four of the Guidance on
the Code (paragraph 21-26), which distinguishes between the information
which should normally be disclosed; and the information which
the department should think seriously about disclosing if requested.
The Code gives a clear structure here.
18. What will be the position under FOI where
a service is provided under contract by a private contractor,
but the service provided is not a statutory service, eg, printing
services?
The White Paper says that services provided under
contract will be covered. The contractors as organisations themselves
would not be directly covered. It will have to become accepted
that the price of doing business with the public sector is that
contracts will be subject to openness requirements. It is assumed
there will be a standard form of words in tender invitations to
deal with this.
19. The Highways Agency say that premature
disclosure of transport proposals could result in generalised
blight, and cause financial harm to individuals. The Code of Practice
contains a specific exemption where premature disclosure could
cause physical or financial harm. Will the 'key specified interests'
permit information to be withheld in such circumstances?
Probably, yes. A specific addition to an exemption
(No.10) was put into the 2nd edition of the Code, after agreement
that it would not be suitable for Exemption 2. Under the White
Paper proposals there was no specific exemption (the one that
mentions safety is intended for physical, not financial safety)
but it was expected that it would come under the decision-making
specified interest. As with any harm-tested approach to protection,
it could be expected that the amount of harm caused by disclosure
might diminish over time, although this was an area where the
decision-taking process was very long-running.
20. One of the factors to be taken into consideration
concerning whether or not information should be disclosed on policy
advice will be 'the extent to which the relevant records or information
relate to decisions still under consideration, or publicly announced'.
For how long is it expected that this consideration should continue
to prevent disclosure?
The wording in this paragraph of the White Paper
is supposed to indicate that once a major policy statement has
been made, then the degree of protection for the information is
reduced. This is a very difficult area, in which a rigid rule
is impossible: on the one hand there are planning decisions; on
the other, the peace process in Northern Ireland. If, though,
the authority can prove that a decision has not yet been taken,
then they have a point working in favour of withholding the information.
21. The interest relating to 'the Decision-making
and Policy Advice processes in government' is described in terms
which relate to central government departments. Will it apply
in the same way to all bodies covered by the Bill? or do you expect
it to be interpreted in significantly different ways as it relates
to different types of authority?
All authorities will be included under this exemption
although some of its defining factors (eg. political impartiality
of civil servants) clearly apply to some bodies rather than others.
22. How is it proposed that 'analytical information'
is to be distinguished from 'raw data and factual background information'?
The passage in the White Paper concerned was intended
to indicate that although there is a simple harm test for policy
advice, there will be a greater presumption that background material
will be subject to disclosure although the analytical and policy
information is tightly protected. There is a separate paragraph,
2.18, which makes a commitment to publish the facts and analysis
behind a decision; it's essentially the same as the code commitment
to publish as much explanatory material as possible, and the background
paper on the FOI White Paper illustrates the type of thing envisaged.
Part of the idea is to provide an incentive for Departments to
pre-empt requests for background material by releasing it themselves,
edited where necessary. As a result of publication, there should
be fewer requests for information, and the department has more
control over the process, while still being substantially open
in its approach.
23. Will the balancing test of the 'public
interest' apply to all the exemptions?
Yes.
24. How do you propose that the 'general purpose
of the act' be defined, in order to indicate how the 'public interest'
will be interpreted?
We assume it will be defined as it says in paragraph
1.2 of the White Paper. The public interest is to some extent
defined in the Public Interest Disclosure Bill, so one way of
defining it would be to say information should be disclosed if
it is of a type that would be disclosed under the Public Interest
Disclosure Bill. Complete certainty in defining the public interest
is not possible, but it is important to try and attempt a definition.
The Code does not define at all what it means by public interest
or a public interest override.
25. Why do you think there may be cases in
which 'a decision taken under the FOI Act might force a disclosure
resulting in a breach of the harm tests that prohibit disclosure
under the Official Secrets Act'?
Protection mechanisms under FOI will be mainly based
on the "substantial harm" test. Not all of the language
in the Official Secrets Act is worded in terms that make clear
that the damage tests are actually more severe than that proposed
for FOIinternational relations being a case in point. So
the Government wanted the White Paper to flag up clearly the need
to ensure that people should not be liable for prosecution for
the unauthorised disclosure of material which had been lawfully
released under FOI.
Chapter 4
26. Does para. 4.10 mean that you intend to
incorporate the rights to correct inaccurate information etc.
which are contained in the Data Protection Act into the Freedom
of Information Act?
Yes. The Data Protection Principles will be incorporated
as necessary into the Freedom of Information Bill. The possibility
of amending the Data Protection Bill for the purposes of Freedom
of Information has not been ruled out. But the legal advice is
that the scope for doing this is likely to be severely constrained
by the Data Protection Directive. Also, any significant overlap
between Data Protection and FOI is likely to be legally difficult
and confusing to operate (the latter point is a concern shared
by departments). On that basis, matters relating to personal information
would be passed to the Data Protection Commissioner by the Information
Commissioner. Where a complaint was made to the Information Commissioner
concerning refusal of access to personal information, it is an
option that it should be transferred to the Data Protection Commissioner
to ensure consistency.
27. The Data Protection Registrar and the
Ombudsman have argued for institutional links to be established
between all the complaints authorities - for example in a 'college',
or a Commission. Would such a system be, in the Government's view,
a suitable means of ensuring the close and effective cooperation
to which you refer, in pars. 4.12 and 4.13? Would you like to
comment on the suggestions made in the evidence to the Committee
by the Ombudsman and the Data Protection Registrar?
There hasn't been any conclusion about this idea
within government: but this a complex area where the Government
would be interested to see any views that the Committee might
wish to set out.
28. The information which data controllers
are required to give under the Data Protection Act includes 'a
description of any recipient or recipients to whom the data controller
intends or may wish to disclose the data'. (Clause 15(1)(e)).
Will this provision prevent departments from disclosing information
which has been collected from others, other than to those people
whom the Department has described to the Registrar?
No. Part III of the Bill, which begins with Clause
15, is concerned with the Notification procedure. Part II of the
Data Protection Bill and the FOI Bill will be discrete regimes
for handling disclosure and Clause 15 does not address itself
to those forms of disclosure. This interpretation seems to be
borne out by the definition of "recipient" given at
Clause 61 of the Data Protection Bill.
29. Will most data subject requests fall under
the Data Protection Act? Or will you expect any to go under the
Freedom of Information Bill?
Yes, mostly under the Data Protection Bill, given
the scope of the Directive.
30. Will the definition of 'personal information'
need to be held in common between the Data Protection Act and
the Freedom of Information Act? Will there also need to be common
definitions of the main exclusions and exemptions, to ensure continuity
between the two access regimes?
If in practice there is little scope for a separate
approach under Freedom of Information then a common approach to
exclusions and exemptions would be helpful.
Chapter 5
31. Paragraph 5.7 appears to indicate that
the Government believes that the Ombudsman is not an 'independent
office holder', and that his decisions are subject to some form
of 'political override', perhaps through this Committee. Is this
really the Government's view?
No. The wording of this paragraph reflects a clear
Ministerial decision not to establish an Information Commissioner
on a basis comparable to the Parliamentary Ombudsman, who has
the power only to make recommendations, which are not legally
enforceable and whose ultimate recourse is to Parliament in the
event of a department's refusal to co-operate. The Chancellor
of the Duchy has gone on the record in making clear that the Government
is in no doubt whatever about the Parliamentary Ombudsman's complete
independence, nor was the wording of the White Paper meant to
suggest otherwise.
32. Paragraph 5.14 says that the Government
intends to create a new criminal office for the wilful or reckless
destruction, alteration or withholding of records relevant to
an investigation of the Information Commissioner. Do you expect
such an offence to apply only where the Commissioner has decided
to investigate? Should it not apply generally, as records may
be destroyed to prevent an anticipated request or investigation?
Yes: it's only intended to apply where the Commissioner
has decided to investigate. A large amount of information is routinely
destroyed when reviewed after five years and that process should
not be affected: if every record was kept in existence for many
years against a possible request/investigation, it would impose
an unmanageable storage and retrieval burden within government.
In any case, shredding significant records to avoid embarrassment
etc. would not only expose officials to possible disciplinary
proceedings, but would be counter-productive in that the resulting
gaps would make life more difficult for public servants. A more
significant issue, in the OPS view, is the irresistible growth
of IT for production of all records, with its associated problems
of system failure, accidental erasure of records through inadequate
IT knowledge, and machine readability in the longer term.
33. As the Government has decided not to allow
Ministers to override the disclosure powers of the appeals body,
will that not leave the powers of Ministers to prevent disclosure
by the Ombudsman anomalous? Will the Government repeal section
11 (3) of the Parliamentary Commissioner Act 1967?
34. Cabinet documents are not, as such, to
be excluded from the Freedom of Information Act; but they are
excluded from the power of the Ombudsman to obtain evidence, under
Section 8(4) of the Parliamentary Commissioner Act 1967. Do you
intend to repeal, or amend this provision?
The Government is looking at these to see if they
can be repealed.
Chapter 6
35. Although the rules relating to access
rights to historical records are to be incorporated into the Freedom
of Information Act, the access provisions for current records
will not be the same as those for historical records. Would not
application of the harm test to historical records have the desired
effect (reflecting the fact that their sensitivity has decreased
due to passage of time) while making the system simpler?
The Government's view is that the system proposed
in the White Paper will be simpler.
36. The Public Records Acts apply to the records
of central government, but the FOI Act's coverage will be much
wider. What provisions cover records held by other public authorities?
Will the provisions on records be made to apply to them?
There is no statutory requirement; but there is an
issue here. On the one hand, it would clearly be undesirable to
create a huge extension of bureaucratic "paper-keeping"
in sectors which have little need for historical records. On the
other hand, would FOI in the longer term expose a need for records
maintenance in areas that currently have no statutory requirements
for it?
Chapter 8
37. How soon after Royal Assent would you
expect the Bill to come into force?
This has not yet been decided. In some areas (particularly
to do with personal information) it may be influenced by the Data
Protection Act, some provisions of which don't come into force
for up to 10 years; on the other hand, unlike the Data Protection
Bill, Freedom of Information is a manifesto commitment, which
is an important argument for early implementation.
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