OUR KEY RECOMMENDATIONS
152. We have said that the publication of the draft
Bill on Freedom of Information is a historic moment in the long
history of the debate in this country about openness in government.
We welcome the commitment of the Government to legislate on this
subject, and we welcome the publication of the Bill itself. It
sets a foundation upon which an effective statutory right to information
can be built.
153. We set out at the beginning of this Report how
a well-constructed Freedom of Information regime can 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 the government and other bodies
to account.
We have heard from Ireland about how their recent
Freedom of Information Act was introduced as part of a package
of measures designed to reform the Civil Service and the machinery
of government. Here, too, the introduction of a Freedom of Information
Bill should be seen as an important and integral part of the Government's
agenda for modernising the way the country is run. But to achieve
the aims we have set out, the Bill must be clear in its purpose
and ambitious in its range.
154. The Bill is undeniably ambitious in its scope.
It will affect almost every public sector body in the country
and many private sector ones as well. Its impact will be felt
by schools, universities, police forces, hospitals, councils and
quangos, as well as by central government departments.
155. It is rather less clear in its purpose. As we
have said it strikes a balance between the right to know, the
right to privacy and the need for confidentiality but in a way
which errs on the side of privacy and confidentiality. The need
for a different balance is crucial. Without greater incentives
to openness, there will be little change in the degree to which
government in this country is open, efficient and "joined-up".
156. We have fixed upon key principles against which
the Bill should be measured. We have attached to them our views
of how the Bill matches up to them; and a brief summary of the
way in which we have proposed amendments, where necessary, to
bring the Bill more closely in line with them. Our principles,
together with a summary of our verdict on the Bill and proposed
changes, are:
There should be a clear presumption in favour
of disclosure as a right of citizenship
· Beyond stating the right to information,
the Bill does not make any emphatic presumption in favour of disclosure.
- We propose that within the Bill there should
be a clear statement indicating a presumption that information
should be made available in response to requests.
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 Bill balances the right to know against
the prospect of harm in providing information and makes those
decisions reviewable and reversable by an Information Commissioner.
But it does not allow the decisions of the authority on the public
interest in disclosing exempt information to be overridden by
the Commissioner.
- We propose that authorities should in each
case be required to weigh the public interest in disclosure against
the possible harm caused by it, and to release the information
if the public interest is greater; and that the authority's decision
on the public interest should be clearly open to review and alteration
by the Information Commissioner.
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.
· The Bill's regime of class-based and contents-based
exemptions is over-protective and over-elaborate.
- We recommend a much more tightly drawn set
of exemptions with, where appropriate, a more demanding harm test.
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 Bill contains an enforceable statutory
right to much information; but in the more difficult areas, there
is no right to information, only a duty on the authorities concerned
to consider releasing information using their discretion.
- Our proposals are designed to ensure that individuals,
through the Information Commissioner, can query and overturn authorities'
decisions on where the public interest lies in particular cases.
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.
· The Bill provides a reasonably clear regime
for applicants, and the Government have proposed a liberal charging
regime. But it allows authorities a long time to deal with requests,
and imposes no duty on them to help applicants.
- We propose that authorities should be obliged
to give reasonable help to requesters and suggest some practical
steps the Government can take when setting up systems to deal
with applications.
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.
· The Bill provides an effective system
of reviewing and appealing against decisions in the shape of the
Information Commissioner and the Tribunal.
- We recommend increasing the Commissioner's
powers, particularly in relation to the public interest; and,
to remove uncertainty, we recommend that there should be a duty
to consult third parties about disclosures, with a right to appeal
to the Commissioner and the Tribunal.
157. With these improvements added, we believe that
the Bill will provide a balanced and effective right of access
to information for the citizen, and deliver the kind of benefits
which we have identified. A full list of our conclusions and recommendations
is set out at the beginning of this Report.
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