Select Committee on Public Administration Third Report


THIRD REPORT


The Select Committee on Public Administration has agreed to the following Report:—

FREEDOM OF INFORMATION DRAFT BILL


SUMMARY

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 test;

·  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 more effective.

Our conclusions and recommendations, in full, are as follows:

-    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 cost;

·  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 (paragraph 42).

-    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 46).

-    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 50).

-    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 (paragraph 52).

-    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 52).

-    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 encouraged—perhaps through the Code under clause 38—to 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 72).

-    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 99).

-    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 110).

-    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 (paragraph 120).

-    We recommend that authorities should be obliged in the Bill to give requesters "reasonable assistance" (paragraph 121).

-    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 cases—though 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 137).

-    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 (paragraph 140).

-    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).


 
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