Select Committee on Public Administration Third Report


What is Freedom of Information for?

"The essence of democratic government, I suggest, lies in the ability of the electorate to make choices about who should govern or about which policies and practices they support or reject. Such choices cannot be made unless sufficient information is available ... Ultimately, information about political and government activity belongs to the people whose interests Ministers and civil servants are elected or appointed to serve".

  Lord Lester of Herne Hill, Q.205

12. Many people have eloquently described the reasons why Freedom of Information is necessary, among them some of our witnesses. In summary, 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.

Striking the right balance

13. These are the fundamental aims and benefits of a Freedom of Information Bill. But these benefits must always, necessarily, be balanced against other considerations. In order to work effectively, government and other organisations need to have some areas of confidentiality; and individuals must have a reasonable right to privacy. The right to information must always be weighed against these other rights. The essential decision to be made under a statutory Freedom of Information regime, therefore, concerns where the balance should lie between the right of the individual to obtain information and the need for it to remain confidential. This matter of balance is crucial. How it is weighed, and by whom, is central to all Freedom of Information regimes. Even when it is stated in a general way in legislation, it then has to be interpreted in the concrete circumstances of particular cases. This often requires fine judgments to be made.

Learning from elsewhere

14. Striking a balance in this way is often difficult to do. These are tricky questions, which go to the heart of issues of human rights and political accountability. Fortunately, it is something on which there is now a great deal of international experience and expertise to draw on. We have turned frequently—like many before us—to the experience of other countries with Freedom of Information legislation. Although it was not the first (Sweden has had a Freedom of the Press Act in one form or another since 1766), the US Freedom of Information Act, passed in 1966, has been highly influential. But we have turned mainly to Australia (1982), Canada (1982), New Zealand (1983) and Ireland (1997) for examples of Freedom of Information legislation working in countries which have political systems more similar to our own. The precedents have given us benchmarks of international practice, against which we have tested the provisions in the draft Bill.

"The overall conclusion is inescapable: this is in general a restrictive Bill when judged by international standards"

  Robert Hazell, Ev. p.91.

15. It is not clear to us that the Government has done the same. International benchmarking is one of the Government's maxims in the recent Modernising Government White Paper, as is the more systematic use of evidence-based policy.[12] We have heard how the Irish Freedom of Information Act 1997 is clearly modelled on Commonwealth Freedom of Information legislation, and how the Irish Government set about learning from the experience in Australia, Canada and New Zealand.[13] The draft Bill draws much less on this overseas legislation. Many of the features which we criticise in this report are home-grown. We are puzzled that the Government have not benefited more from the experience of these tried and tested models in countries with political and legal systems very similar to our own. 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.

Key principles

16. The benefits of Freedom of Information that we have identified can only be achieved if the law that is put in place gives an effective and easily exercisable right to obtain information. A poorly constructed law could leave the citizen's ability to obtain information little different to what it was before. We set out below what we think are the key principles on which Freedom of Information law should be constructed in order to gain the benefits we have set out:

·    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.

From principles to legislation

17. Throughout our consideration of the Bill, we have kept these principles in mind, and sought to measure the Bill against them. The Bill gives the public a right to information held by a wide variety of public authorities, and sets out a regime for how authorities should respond to applications: how quickly they must comply, what fees they can charge, and so on. These are qualified by a number of exemptions, some expressed in terms of a class of information, others in terms (normally) of whether disclosure "would, or would be likely to, prejudice" the interest to be protected. If the information is exempt, the authority is nevertheless required to consider whether disclosure would be in the public interest, and if so, may disclose it. The right to information is overseen by an Information Commissioner, who is equipped with two sets of powers. Using the first, she[14] can force authorities to comply with their obligations to release information if it is not exempt, and to handle applications in accordance with the rules set down in the Bill itself. Using the second, she can issue recommendations to make authorities conform to best practice, as laid down in Codes of Practice by the Home Secretary and the Lord Chancellor. There is an Information Tribunal to which both the applicant and the authority may appeal against a decision of the Commissioner. Provision is also made for access to historical records—in other words, documents which are more than 30 years old.

18. Much of the evidence we have received argues that in important respects the Bill does not live up to the principles we have outlined. The Campaign for Freedom of Information argues that the Bill represents "an astonishing retreat from the Government's own White Paper published only 17 months ago, with the backing of the whole Cabinet and a preface from the Prime Minister ... In numerous areas the White Paper's commitments have been weakened. The 'substantial harm' test has been replaced by the lower test of 'prejudice'. The 'simple harm' test for policy advice has been replaced by an absolute exemption. The binding public interest test has been replaced by one that is unenforceable, and also permits authorities to insist on knowing why the applicant wants the information and to control what they do with it. The proposed right of access to unrecorded information has been dropped. New catch-all exemptions unlike those found in any other FoI law have been devised".[15] Some have even compared the Bill unfavourably with the non-statutory Code of Practice, which, they argue, has been considerably more effective than the Bill will be.

19. This is to overstate the case. The Government have drafted a Bill which will give effect to the promise to give people a proper statutory right to information held by public (and some private) bodies. The breadth of its coverage means that it will enable people to exercise a statutory right to a wide range of information held by numerous public bodies, including schools, colleges, universities, hospital, general medical practitioners, the police, local authorities including their social services or housing departments, prisons and so on. As some of the Bill's critics have acknowledged, in important respects it goes well beyond the Code:

·    It gives a legal right to information, enforceable through a Commissioner and Tribunal;

·    It gives a broad right to recorded information, including the actual documents themselves;

·    It applies well beyond the central government departments and quangos to which the Code applies, and covers the organisations with which people are in daily contact;

·    Individuals can complain directly to the Commissioner, and do not have to go via a Member of Parliament;

·    Authorities will be under constant pressure to publish information as a matter of routine, through publication schemes;

·    It makes altering records with intent to prevent disclosure a criminal offence.[16]

The Bill works in a very different way from the Code, and covers a much wider area. In some particular respects the Bill has gone even further than the White Paper said it would, in some points in response to this Committee's recommendations in its earlier Report. The police are now included (the White Paper proposed to include the police, but only in relation to their administrative functions). It has provided a much more workable regime for ensuring that the right to information works together with the Data Protection Act. It has put in place a system of appeals via a Tribunal.

20. However, the Bill's critics are more to the point when they set the promise of the White Paper against what is actually delivered in the Bill. It is true that there is only a handful of clearly identifiable major policy changes from the White Paper to the Bill: the abandonment of a substantial harm test; the combining of the roles of the Data Protection Registrar and Information Commissioner; the addition of a Tribunal; and the adoption of the Ministerial certificate in certain cases. The judgement of Clifford Chance is that "the rights and duties proposed by the draft Bill are cast in a sea of qualifications, restrictions and exemptions to such an extent that it is doubtful whether the legislation will by itself achieve any significant cultural change... there is no central theme of greater openness".[17] An emphasis on access seems to have been replaced with an emphasis on exemptions.

"A Bill like this, if I compare it to some of the others, has so many words that if people do want to find ways out they will use the words in this Bill to find a way out and I think that is the danger".   Dr Dick Baxter, Q.148

21. Mark Fisher MP urged us, though, to move on from discussion of the White Paper: "we are dealing now with a draft Bill and the interesting thing is not testing it against the White Paper but testing it against other legislation. That is the real world and the world we are dealing with and we need a piece of legislation which learns from the best and the least effective aspects of what is happening in the real world".[18] We agree. We are not concerned here with exploring the differences between the White Paper and the Bill. That would be fruitless and irrelevant. In trying to establish whether the Bill will be an effective instrument to achieve the sort of culture change which we have said is one of the main benefits of Freedom of Information, we have focused our task on examining the provisions of the Bill against the principles we have identified and in the light of benchmark international practice.

22. Our witnesses, and those who gave us written evidence, have directed us to what they regard as critical flaws in the structure and provisions of the draft Bill. It is on these points which we have mainly concentrated in our Report. They are, in the same order of subject and of priority, to the principles we have listed in paragraph 16 above:

·  There is no governing statement—no "purpose clause"—which clearly commits the Government to the principles that should underlie the Bill, sets out a presumption that information will be disclosed, and provides a guide to interpretation in particular cases;

·  The Bill gives a right to information unless disclosure would cause "prejudice" to various interests. But if disclosure would cause "prejudice", there will be no right to the information even if disclosure might be in the public interest; and although an authority must consider whether it might be in the public interest to release the information, it may continue to withhold it, and its decision to do so cannot be overridden by the independent Information Commissioner or the Tribunal established under the Bill.

·  The exemptions to the right of access to information are drawn very widely indeed: they include a comprehensive exemption for information relating to investigations, including investigations into the causes of accidents (clause 25); a very broad exemption covering commercial interests (clause 34); and an exemption which could cover virtually all information relating to policy-making (clause 28);

·  Some of the matters which in other Freedom of Information schemes appear as statutory duties—for example the requirement to balance harm against the public interest and to release information if there is an overriding public interest; the obligation to publish certain information; the duty to provide assistance to people who are making requests under the Act—appear in the Bill merely as factors which must be considered, or to which regard must be had, or which must be taken into account;

·  The Bill in its present form is very complex and difficult to understand; and the time limit it sets for the taking of a decision in response to a request for information is longer than under any other Freedom of Information regime in the world;

·  The system of review by Information Commissioner and Tribunal makes it possible for an authority to avoid handing over information for a long time, if it so chooses; and because there is no effective system by which those who may be affected by disclosure can appeal, there is a risk that the Bill may give rise to litigation.

23. If all of these claims are right, then the Bill will certainly not fulfil the aims and benefits of a Freedom of Information Act. In what follows, we have tried to judge whether the claims of the Bill's critics are right. We review how the Bill's promise of statutory rights is tempered by a preference for encouraging authorities to exercise their discretion to disclose information; next, we consider how effectively the Bill has achieved the difficult task of balancing the right to know against the other considerations to which we have referred above (para. 16); and, finally, we look at how the Bill will operate from the point of view of applicants; how it will be enforced; and how it will affect the treatment of historical records. First, though, we briefly consider the extensive scope of the Bill.

"If the public could be brought to accept that information held by government could not and would not be withheld simply because disclosure would be embarrassing, I believe that public mistrust of government and cynicism about government explanations might begin to ebb. An effective Freedom of Information Act would, I think, play an important part in that process. But if it is to do so, it must be apparent that information can be withheld only for genuinely strong reasons, and that some mechanism for policing refusals to disclose information is in place".

  Sir Richard Scott, Response to consultation on the draft Bill

12  Cm. 4310, Cabinet Office, March 1999. Back

13  See Annex 1. Back

14  The Commissioner is referred to as "she" throughout the Report, because the roles of Data Protection Registrar and Information Commissioner are combined in the Bill, and the Government has stated that it expects that the present Data Protection Registrar, Mrs France, will have the task of bedding-in the new regime and preparing for implementation. Once the Bill has passed into law, however, it expects to fill the position by way of open competition: Annex 6, Note 16. In the Bill itself and in the Consultation Document, the Commissioner is referred to as "he". Back

15  Ev. p.1. Back

16  See Annex 2 for a comparison of the Code, the White Paper and the Bill. Back

17  Ev. pp.113-14. Back

18  Q.776. Back

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Prepared 29 July 1999