STRIKING THE RIGHT BALANCE
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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