Select Committee on Public Administration Third Report


"The Government still does not fully understand the difference between open government and freedom of information. Open government means the Government publishing information largely for its own purposes: information that the government thinks we need to know or might like to know. Freedom of information requires the Government to disclose information which we decide for ourselves we want to know".

  Robert Hazell, Ev. p. 91

28. In recent years, successive governments have made significant advances in providing information about the processes of government and in opening up government to public scrutiny. Some argue that the Code of Practice has already had an effect on the culture of government. The Home Office's Consultation Document accompanying the draft Bill provides examples of cases in which the present Government has published, without any obligation to do so, documents relating to departmental rules, the facts and analysis behind policy decisions, and other matters. This sort of voluntary openness has sometimes been called "open government"—the title given to the Green Paper of 1979 and the White Paper of 1993.[30] But it is a big leap from this to a proper right of access to information. As Mr Straw told us, "there is a profound difference between a non-statutory Code which is there by the grace and favour of Ministers, and a statutory framework which is there whether Ministers like it or not and which has been passed by Parliament and has all the force of law".[31] This is a central distinction.

29. The Bill does create a statutory right to information. Yet, as many of our witnesses have pointed out, that right is so hedged about with qualifications and exemptions that it will not cover a large amount of information which the public might want. For much that the public might want to know, it will continue to be within the power of the authority which holds it to decide whether or not to release it. Under the provisions of the Bill, for example, there would be a right to obtain only some of the documents listed in the Home Office Consultation Document as examples of material released voluntarily by the Government.[32] The draft Bill, in short, perpetuates what Robert Hazell describes as a tendency to adopt the "paternalistic model of open government, with the government deciding what we need to know".[33] In three crucial ways, the draft Bill has more in common with non-statutory open government regimes than with statutory Freedom of Information ones. First, as long as the disclosure of information could cause prejudice, the authority cannot be forced to release it, even if it may be in the public interest to do so. Second, there will be no general statutory obligation on authorities to publish reasons for administrative decisions; nor to release the facts and analysis behind policy. Third, some of the other matters which are laid down as duties in other Freedom of Information regimes are left to be included in a non-statutory Code of Practice. We now deal with these points in more detail.

The public interest: who judges?

30. In clause 8 of the draft Bill there is a clear statement that "any person is entitled, on making to a public authority a request for information—

(a)    to be informed by the public authority whether it holds information of the description specified in the request, and

(b)    if that is the case, to have that information communicated to him".

31. The right is then properly qualified by a series of exemptions, which are considered more fully below. Such exemptions exist in all other Freedom of Information regimes and are obviously necessary for any sort of workable government. But in other Freedom of Information regimes—and, indeed, in the present Code of Practice on Access to Government Information—authorities are explicitly required to balance the harm which might be caused by disclosure against the public interest, with their decisions on this balance reviewable and reversable by an Information Commissioner (or, in the case of the Code, by the Ombudsman). (See the table on the page opposite.) The Bill departs from this model. Under the majority of its exemptions the authority is first required to decide whether disclosure of the information would, or would be likely to, cause "prejudice" to one or other of a number of functions or values which require protection. Its decision on this is subject to review, and reversal, by the Information Commissioner, and subsequently by the Information Tribunal. The authority's consideration at this stage does not involve the public interest. Only (under clause 14 of the Bill) if an authority decides that the information is exempt from disclosure, is it then required to consider whether it would be in the public interest to disclose it anyway. The Information Commissioner may issue a notice requiring the authority to reconsider its decision on the public interest. She may list matters to which the authority should have regard when it makes its decision. But she may not disclose the information, nor require the disclosure of the information. In short, though the Information Commissioner will be able to determine the question of fact about whether information is, or is not, exempt, she will not be able to determine the question of whether disclosure is in the public interest.

32. In this crucial sense, the Bill continues the present discretionary system of the Code of Practice—it is "open government" and not "freedom of information"—although without a public interest override. The Government have been quite candid on this point. Mr Lee Hughes, the Head of the Freedom of Information Unit in the Home Office, confirmed that "it was felt that the right person to make the final decision on that, having taken into account anything that the Commissioner, for example, might propose, would be the public authority itself".[34] The Home Secretary argued to the Committee that there was no explicit mention of a duty to balance the likelihood of prejudice against the public interest because this was what the authority would be doing by balancing the right to know against the exemptions in the Bill: "where we have a harm test, what is or is not in the public interest is defined by reference to the harm test. That is how the structure of the Bill works. The only other way of doing it would be to be imprecise about what was or was not in the public interest, which I think would be to make the legislation inoperable".[35] Perhaps more to the point, though, was his argument that in a Parliamentary democracy it was for Ministers to be accountable to Parliament for identifying what was, or was not, in the public interest in any particular instance; it was not something which could, or should, be delegated to an independent, and therefore effectively unaccountable, official. It should be, Mr Straw told us, Ministers who decide on this issue.[36] He pointed out, in addition, that most overseas regimes have a "fall-back whereby a Minister can overrule what the Commissioner or equivalent has decided, there is an executive override".[37]

30  In this Report, "Open Government" is used in this specialised sense, and not in the broader sense in which it is understood in the US and sometimes in the UK. Back

31  Q.36. Back

32  Annex 6, Note 109. Back

33  Ev. p.91. Back

34  Q.59. Back

35  Q.58. Back

36  Q.1007. Back

37  Q.1022. Back

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