Select Committee on Public Administration Third Report


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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Prepared 29 July 1999