The Select Committee on Public Administration
has agreed to the following Report:
FREEDOM OF INFORMATION DRAFT BILL
1. We welcome the fact that the Government has published
a draft Freedom of Information Bill. Legislation on the information
rights of citizens is a historic moment for our democracy. However,
we believe that the present form of the Bill has significant deficiencies
which, if not remedied, will undermine the potential. In particular
we recommend that:
· There should a purpose clause stating
a clear presumption in favour of disclosure as a right of citizenship;
· The public interest in disclosing particular
information in each case should be balanced against the prospect
of harm in so doing; the information should be released if the
public interest is greater; and decisions about where the balance
lies in particular cases should be transparent, and reviewable
by an Information Commissioner, whose decisions are enforceable;
· The right of access to information should
apply as broadly as possible, and exemptions to it should be drawn
as narrowly and precisely as possible with a more demanding harm
· A statutory freedom of information regime
should contain, as much as possible, enforceable rights of access
to information; not undertakings to consider the discretionary
release of information;
· The right to information should be simple
to understand, to access and to exercise and it should be possible
to obtain information reasonably speedily, and at reasonable cost;
· Authorities should be obliged to help
requesters; and there should be a duty to consult third parties
about disclosures, with a right for them to appeal to the Commissioner
and the Tribunal.
These key improvements would rebalance the Bill and
enable it to fulfil its potential. They can readily be done, so
that legislation can be introduced in the next session of Parliament.
The draft Bill procedure is designed to improve the quality of
legislation and that is what our recommendations are intended
to achieve. We believe that this will make the draft Bill better,
our democracy stronger, and the information rights of citizens
Our conclusions and recommendations, in full, are
- We welcome the publication of the draft
Bill, and the Government's commitment to legislation on Freedom
of Information. Once the comments we have made, and the comments
made by others to the Home Office in the course of the consultation
process have been taken into account, we would expect to see a
Bill formally introduced into Parliament in the course of the
next session. In our view, a Bill that is improved in the way
we suggest will have a major and beneficial effect on the way
government in this country is run (paragraph 4).
- We note and endorse the recommendation
of the Social Security Committee that where the Government plans
to publish a draft Bill and invite comments on it, it should always
do so before Easter, if it hopes to get the Bill into the following
year's legislative programme. We further recommend that the Government
should then invite comments within two months, allowing a Committee
the remainder of the time up until the summer recess to take evidence
on the basis of the comments which have been received. We would
expect this to become the normal pattern in future when the Government
seeks comments on a draft Bill (paragraph 9).
- A well-constructed Freedom of Information
regime is a vital instrument to enable members of the public to:
· participate in an informed way
in the discussion of policy issues, and so improve the quality
of government decision-making;
· find out what information government
and other public bodies hold about themselves;
· hold government and other bodies
to account (paragraph 12).
- We recommend that good international
practice should be followed unless the Government can demonstrate
that it has caused problems. Any departures from such practice
should be explicitly justified (paragraph 15).
- The key principles on which Freedom
of Information law should be constructed in order to give the
benefits we have set out are:
· There should be a clear presumption
in favour of disclosure as a right of citizenship;
· The public interest in disclosing particular
information should be balanced against the prospect of harm in
doing so, with decisions about where the balance lies in particular
cases being transparent, and reviewable by an independent person
whose decisions are enforceable;
· The right of access to information
should apply as broadly as possible, and exemptions to it should
be drawn as narrowly and precisely as possible;
· A statutory Freedom of Information
regime should be based, as much as possible, on enforceable rights
of access to information; not on undertakings to consider the
discretionary release of information;
· The right to information should be
simple to understand, to access and to exercise, and it should
be possible to obtain information reasonably speedily and at reasonable
· There should be independent systems
of reviewing and appealing against decisions which balance the
interests of applicant, authority and other parties (and the public
interest) fairly and effectively (Paragraph 16).
- We strongly welcome the extensive coverage
of the Bill and recommend that it is applied to Parliament (as
is proposed in the Consultation Document) (paragraph 24).
- If clause 14 is to remain, we recommend
that subsections (4)(b) and (6) be removed (paragraph 40).
- If clause 14 is to remain, we believe
that it should contain three further provisions which would encourage
authorities to exercise their discretion wherever possible in
favour of openness. The first is an explicit statement that unless
there is a compelling argument to the contrary the public interest
should be regarded as coming down in favour of disclosure. In
effect, this would be a purpose clause which would explicitly
rebalance the Bill in favour of disclosure (paragraph 41).
- The second of our proposed modifications
to clause 14 would be to require authorities to give reasons for
their decisions not to disclose, unless the giving of reasons
would itself disclose the information which had to be protected
- The third modification we propose to
clause 14 would be to strengthen the ability of the Commissioner
to criticise the authority's decision under the discretionary
disclosure provision by giving her the power not only to require
the authority to take a decision under the clause and to specify
the matters to which the public authority must have regard in
making the decision (under clause 45 of the Bill), but also to
recommend the decision it should come to. Backed by the power
to issue a practice recommendation under clause 41, the Commissioner
would then have some ability to enforce openness in a practical
way (paragraph 43).
- We believe that it is preferable in
Freedom of Information legislation not to leave the question of
whether disclosure of information is in the public interest to
the discretion of the authority which holds the information. We
recommend that, for most of the exemptions, instead of the discretionary
disclosure provision in clause 14 there should be a requirement
to weigh up the harm caused by disclosure against the public interest
in disclosure. The judgement arrived at by the authority could
then be reviewed, and revised, by the Information Commissioner.
Any exemptions which do not contain the requirement to balance
prejudice against the public interest should be subject to the
discretionary disclosure provisions of clause 14, also reviewable
by the Information Commissioner (paragraph 44).
- We recommend that the Commissioner's
powers in relation to publication schemes are strengthened (paragraph
- We recommend that the obligation to
publish information be strengthened in the Bill. It should specify
more clearly the type of information that authorities will be
required to publish. In particular authorities should be obliged
to publish internal manuals and guidance as a matter of statutory
duty (paragraph 47).
- We recommend that the Bill should contain
a clear statutory duty to give reasons upon request for administrative
decisions, quite separate from publication schemes (paragraph
- We recommend that the Government reconsider
the balance between dealing with certain administrative provisions
on the face of the Bill and dealing with them in a Code of Practice
- We recommend that in future exercises
of this kind, proposed Codes of Practice should normally be published
with the draft Bill. We recommend that the Codes in draft should
be made available when the Bill itself is introduced (paragraph
- We recommend that the Bill should contain
a clear statement indicating what it is intended to achieve and
indicating a presumption in favour of disclosure (paragraph 59).
- We accept that there is a role for
class-based exemptions in a few narrowly-defined areas where there
may be high demand for information and a low likelihood that it
will ever be disclosed or where there is a clear need for definite
protection. The security and intelligence services, and Cabinet
papers, are the obvious examples. There is an argument for class-based
exemptions in areas where the slightest possibility of disclosure
could be directly detrimental to important public interests. But
such exemptions should be very few; they should be clearly defined;
and they must be clearly justified (paragraph 63).
- We accept that "prejudice"
is to be preferred to "harm" on the grounds that it
is more common in other legislation (paragraph 65).
- There is no reason why different tests
should not be used in different circumstances, as they are in
much of the overseas legislation. We believe that it would be
right under certain of the exemptions to say that only "substantial"
or "significant" prejudice should be allowed to prevent
disclosure. We recommend that the harm tests for the exemptions
in clause 22 (international relations), clause 23 (relations
within the UK), clause 24 (economy), and clause 34 (commercial
interests) should refer to "substantial" or "significant"
"prejudice". We also recommend that for each of the
contents-based exemptions the harm caused by disclosure should
be explicitly balanced against the public interest in disclosing
the information (paragraph 71).
- We recommend that authorities should
be encouragedperhaps through the Code under clause 38to
adopt charging policies which recognise that certain information
should be available to the public free of charge; and that (perhaps
through the publication schemes) the Commissioner should oversee
the charging policies adopted by authorities in order to confirm
that information is "reasonably accessible" (paragraph
- Authorities should be encouraged, through
the Code of Practice under clause 38, to use the exemption for
future publication in a limited way (paragraph 73).
- We acknowledge that there is little
point in giving a right of access to information held by or relating
to the work of the security and intelligence services when it
will be in practice ineffective (paragraph 77).
- We recommend that the security and
intelligence services be obliged to draw up publication schemes
under clause 6 (paragraph 77).
- We recommend that, in place of clause
25, there should be a specific and tightly drawn class exemption
for informants (paragraph 81).
- We believe there is no need for the
comprehensive exemption for investigations in clause 25.
In particular, the fact that the exemption will continue to be
effective well after an investigation is completed is unnecessary
for most purposes. The information the exemption covers is already
covered by the clause 26 law enforcement exemption which
itself protects the investigatory functions of authorities. If
it is felt necessary that there should be further protection for
investigations, this might be provided by means of an exemption
for information which would prejudice the conduct of existing
or future investigations, or legal proceedings, as appears in
other Freedom of Information legislation abroad (paragraph 82).
- We accept that communications between
Ministers, Cabinet and Cabinet Committee proceedings, as well
as the provision of advice by law officers, should be covered
by a class-based exemption in the Bill. We doubt, however, that
information relating to "the formulation or development of
government policy" is a sufficiently well-defined class.
Nor do we believe that a class-based exemption for the operation
of a Ministerial private office is appropriate. We recommend,
instead, that information that needs to be protected under these
two headings should be covered under the contents-based exemptions
in subsection (3) (paragraph 89).
- We recommend that the Commissioner
be enabled to test the correctness with which the exemption for
the deliberations of public authorities is claimed, as she will
be for the other exemptions; and that the subsection be subject
to an explicit public interest override (paragraph 90).
- We therefore recommend that the exemption
for decision-making and policy formulation should specifically
not be taken to apply to purely factual information held by public
authorities, nor to analysis, if that information has been created
in order to inform policy decisions, and that this distinction
should be clearly drawn in the Bill (paragraph 93).
- We recommend that the Government respond
fully to the proposals the Data Protection Registrar in its response
to this Report; and that it in any case consider helping those
who have to apply these provisions by stating within the Bill
itself (rather than indicating through the application of certain
provisions of the Data Protection Act) the rules to be applied
to requests for third party information. There will undeniably
need to be an easy-to-understand guide for authorities on how
they should apply these provisions, and we recommend that the
Government collaborate with the Data Protection Registrar on the
production of such a guide. We believe that applicants should
be able to gain access to the information they require without
having to establish which Act to use; and that authorities and
the Commissioner should work to make this possible (paragraph
- We recommend that some clear guidance
be provided on the practical interpretation of the exemption for
information provided in confidence (paragraph 102).
- We recommend that the commercial interests
exemption be replaced by a narrower test (while preserving the
existing class exemption for trade secrets) or else, as we have
already recommended, is limited to what would cause "substantial"
prejudice (paragraph 105).
- We recommend that in this clause there
should be an explicit public interest test to be balanced against
the prejudice arising from disclosure (paragraph 106).
- We recommend that third parties should
have a right to notification of a possible disclosure of information,
with a right of appeal against disclosure to the Information Commissioner;
also that the Tribunal should be able to entertain complaints
from third parties about the disclosure of information. However,
there must be clear guidance on how much effort it is reasonable
to make in order to obtain the views of third parties (paragraph
- We regard the possibility that EC provisions
may limit the extent of disclosure of EC documents under the legislation
as unacceptable, but the remedy lies in securing a more open EC
regime (paragraph 111).
- We recommend that clause 36 is removed
from the Bill (paragraph 112).
- We recommend that clause 37 be removed
from the Bill (paragraph 116).
- We recommend that the Bill specify
that where a request is turned down, clear reasons must be given
for the refusal, and the applicant must be told of his or her
right to complain and to appeal (paragraph 119).
- We recommend that the Bill include
a provision making clear the authority's obligation to disclose
part of the information requested, even if part of it is exempt
- We recommend that authorities should
be obliged in the Bill to give requesters "reasonable assistance"
- We recommend that the publication of
registers of information held by an authority be included as an
element in publication schemes (paragraph 122).
- We recognise that there are dangers
in the system proposed for charging for requests. We believe,
however, that the ability to charge more realistic costs for requests
which cost more than £500 to deal with may (given the present
structure of the Bill) satisfy authorities that they will be able
to recover the costs involved in large and complex requests; and
that the low costs for easier requests will mean in practice that
most authorities will not charge for information. It will be essential
to keep the charging regime under continuous review to ensure
that it is working effectively and fairly (paragraph 125).
- We recommend that the Secretary of
State use the power given him in the Bill to vary the time allowed
for different kinds of casesthough without making it too
complex. In particular, it should be no worse than it is already
under the Code (i.e., 20 days) for requests for recent information
addressed to those bodies under the jurisdiction of the Parliamentary
Commissioner though it might be somewhat longer for less recent
information, or for other bodies (paragraph 128).
- We recommend that provision be made,
either through the Regulations relating to time limits under clause
10, or through the Code of Practice, making clear that genuinely
urgent requests should be treated expeditiously (paragraph 128).
- We believe that an authority should
not be able to withhold information from the Commissioner on the
grounds that it might provide evidence of the commission of an
offence by the authority. If it is necessary to protect an individual's
right to be presumed innocent, this must apply only to individuals.
We recommend that the Bill be amended accordingly (paragraph 135).
- However, adding a Tribunal stage to
the enforcement system does provide a necessary element of procedural
fairness to the system. We would expect systems of informal resolution
to prevent all but the most intractable cases proceeding as far
as the Tribunal, and we would expect no case to take longer than
9 months to settle. Lord Lester welcomed the addition of a Tribunal
to the Bill, and so do we. The Tribunal represents a relatively
simple and quick form of appeal, based on precedent (paragraph
- We recommend that if there is any deficiency
in the Parliamentary and Health Service Commissioners Acts which
will prevent the Ombudsmen from dealing with complaints even where
these involve some element of a Freedom of Information request,
this should be remedied (paragraph 138).
- We repeat our earlier recommendation
that this Committee should have the right to interview the prospective
appointee about the post before he or she takes up the appointment
and make recommendations to the House (Paragraph 139).
- We recommend that this Committee become
the Parliamentary focus for the work of the Information Commissioner
- We recommend that the Home Secretary
be obliged in the Bill to publish an annual report on the operation
of the Act (paragraph 141).
- We recommend that the exemptions for
investigations, honours and communications with the Royal Household
should cease to apply after 30 years (paragraph 146).
- We recommend that all the exemptions
cease to apply after 100 years, if they have not already ceased
to have effect (paragraph 147).
- We recommend that the strength of the
current system in making clear decisions on whether records are
exempt at the point they are transferred to the Public Record
Office should be continued into the new regime; and that this
system is incorporated within the Code of Practice made under
clause 39 (paragraph 148).
- We would assume that the Public Record
Office should continue to be closely involved in the process of
reviewing records and deciding on their suitability for disclosure
at the 30 year point, to ensure that this is done on time and
efficiently (paragraph 149).
- We recommend that the Code of Practice
should in particular address the issues surrounding electronic
records (paragraph 149).
- We recommend that the Advisory Council
should continue to play a role in overseeing the release or continuing
disclosure of material at the 30 year point, and that this should
be stated in the Bill (paragraph 151).