Select Committee on Public Administration Third Report


Does the Bill strike the right balance?

54. We have stressed that Freedom of Information is, in practice, a balancing exercise between the right to know, the right to privacy and the need for, or duty of, confidentiality. Where the balance lies is determined, essentially, by the regime of exemptions that are provided from the right of access: what they cover, and how they cover it. It can also be influenced by other factors: by a test of whether the public interest would better be served by disclosing information or by withholding it, such as we have already discussed; or by a statement which defines the overall purpose of the Act—a "purpose clause". In the draft Bill the balance is made in the exemptions, although on top of this there is the duty (contained in clause 14) to consider whether the authority should use its discretion to disclose, which we have already discussed. Some information is exempted from the right to know altogether. For other information, the right to know is set against the chances of the information resulting in "prejudice". The Home Office have told us that the Bill strikes an effective balance between the right to know, the right to privacy and the need for confidentiality. The balance rests, as the Home Office have told us, on a combination of the existing provisions in the Bill: in particular the exemptions and the discretionary system (including consideration of the public interest) in clause 14. Others have argued that the Bill tends to lean too far towards confidentiality. We now consider some of the various elements which set (or can set) the balance of interests in the Bill, in particular the issue of a purpose clause, and the proposed exclusions and exemptions. We determine whether, taken together, they define the proper balance.

A purpose clause

55. A number of our witnesses have suggested that one of the ways in which the Bill could be rebalanced would be to add a statement of its overriding objective of improving public access to information by means of a purpose clause.[95] Purpose clauses can be used to indicate clearly which of two or more competing values should be uppermost when a decision is made. In this Bill, such a clause could have the effect of encouraging Commissioner, Tribunal and judges to lean towards disclosure. Perhaps more important, though, it could influence those people in departments and other authorities who actually have to operate the legislation. Dr Dick Baxter, a former civil servant responsible for implementing the Environmental Information Regulations, provided us with an instance of this from his own experience: "when colleagues came to me wanting to refuse access to environmental information I would always point them to the policy statement of the Government that came from the White Paper Our Common Inheritance that set out government policy. It had a wonderful sentence to start it off saying 'the Government's policy is to give out as much information as possible about the environment'. I used to point this out to them and say, 'That is the Government's policy. How can you defend not giving it out?' and most people caved in at that point because that was a clear statement".[96] Although not common, purpose clauses are not unheard of in UK legislation. They are normal in overseas Freedom of Information Acts.

95  e.g. Ev. pp.18, 43, 114. Back

96  Q.148. Back

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