Select Committee on Public Administration Third Report


ANNEX 1


Informal Note of a meeting held (in private) by the Select Committee on Public Administration of the House of Commons and the Select Committee on the draft Freedom of Information Bill of the House of Lords, with Martin Cullen TD, Minister of State, Department of Finance, Republic of Ireland, accompanied by Mr Gerry Kearney, Central Policy Unit, 13 July 1999


1.    The Freedom of Information Act applies to all Government departments and a number of public bodies which are specified in the Act, including health boards and local government. Over the next eighteen months it is likely that the Act will be amended to bring some more bodies under the Act (including the State Broadcasting Company).

2.    Up to the end of May 1999 (after the Act had been in force for a year) 8000 Freedom of Information requests had been received. 60% of these had been granted in full or in part; 18% had been refused; 7% had been transferred or dealt with outside the Freedom of Information regime. The remainder are live cases.

3.    Sources of the requests: 54% of them were for information about the requester; 14% came from journalists; 11% came from business; and 4% came from members of the House of the Oireachtas.

4.    Freedom of Information has to be seen within the wider context of the public sector reform programme. It has helped to publicly demonstrate the Government commitment to fundamental reform. It has helped to open up public sector recruitment, procurement, and enhance financial management practices. Freedom of Information goes to the heart of an unduly centralised government system. It shows up the inefficiencies which exist within the public sector. It creates pressure for reform, and subjects government to greater accountability. It has greatly assisted civil service reform. Civil servants have taken their cue from the fact Ministers too are adopting to far reaching changes predicated by FOI access.

5.    It was crucial in the development and implementation of the Act that there was clear political sponsorship of FOI. Insofar as implementation is concerned the existence of an FOI Central Policy Unit, which has pushed through a huge training programme, was also important. Tens of thousands of officials were trained at all levels. The result of training has been that FOI is generally administered in a competent and enlightened spirit. The practice has been to help people to define their requests, by picking up the phone and clarifying exactly what is required.

6.    Basically Freedom of Information in Ireland requires that all records should be accessible unless there is a particularly strong argument to justify non­disclosure. Ireland has had the experience of a number of Tribunals of Inquiry. Had a Freedom of Information Act been in place, such Inquiries might not have been necessary: Freedom of Information avoids misinformation and promotes confidence in public bodies.

7.    Prior to passage of its FOI Act Ireland had no non­statutory system of access to information. In preparing its Bill, the Irish authorities drew considerably on overseas experience. Considerable time was spent reviewing arrangements and experience in other common law jurisdictions i.e. New Zealand, Australia and Canada, and examining state as well as federal legislation. Input from key expert sources, such as Robert Hazell was also influential in shaping thinking. In sum, the Irish Act sought to learn from overseas experience while addressing its own distinctive jurisdictional needs.

8.    The approach taken in the Irish Act was simply _to allow access to the greatest extent possible consistent with the public interest and the right to privacy_. Any alternative approach would have damaged public confidence and the credibility of the Bill. This in turn could adversely affect the legitimate public interest in promoting such legislation which has much to offer in terms of strengthening citizens rights and promoting accountability.

9.    In framing an FOI Bill it may be helpful to focus clearly on the rights of the public seeking access to information. Clarity as to the purpose of the Bill is essential, for users, public servants, politicians and the media. An obligation to apply a public interest override across many exemptions lies at the heart of a good FOI Act. So too does a powerful Information Commissioner who can review and set aside decisions by public bodies.

10.  Politicians should not be unduly concerned about the media securing damaging headlines and stories under Freedom of Information. FOI operates on time­scales that are generally too long for journalists. The Irish Act certainly challenged Ministers in the early days—obvious examples arose in relation to decision making and access to expenses. The Act was drafted to ensure that exemptions would not enable public servants or Ministers to easily refuse access to records.

11.  It_s far better for Ministers to be open about information. So often, the story that journalists use is not based on the information itself, but the fact that the information has been refused. The provision of information establishes the facts and kills off the hype.

12.  Some private interests endeavoured early on to process and sell information gained under FOI. This has not proved successful because of ease of access for individuals to secure FOI access and because of changes in practice by public bodies in relation to procurement. The Government was very conscious of business concerns when implementing the Act. It established a business advisory group which comprises representatives of the main business and commerce interests in the State. The purpose of the Group is to deepen awareness of FOI across the business sector. The Group meets periodically and proposes to publish a guide for business. The thresholds for the protection of commercially sensitive information are very reasonable and sensitive business information can be readily protected. The main issue arising to date in the area of business information concerns the level of disclosure appropriate in cases of successful tenders. A decision by the Commissioner on the matter is currently before the High Court.

13.  Two broad issues arise for consideration with the Irish FOI Act and neither relate to exemptions. The first is the adequacy of administrative protections in the Act against vexatious or unreasonable requesters. The second is the extent to which the Act might accommodate requests for substantial volumes of information, but on such occasion apply charges which more closely reflect the costs involved.

14.  In Ireland a requester has a choice of whether to apply for information under the Data Protection Act or under the Freedom of Information Act. The Information Commissioner is not concerned with the Data Protection Act.

15.  The Irish law enforcement and national security exemptions allow a Minister to issue a conclusive certificate, which blocks an appeal to the Information Commissioner. No certificate has been issued since the commencement of the Act. As regards policy papers the general practice has been towards withholding information where an issue is still live, and releasing information when the deliberations have concluded, or an appropriate stage in the deliberations has been passed.

16.  There is an exemption for information received in confidence from other countries or international organisations. In practice, there has been no example of disclosure of a document coming from another country or international organisation which that country or organisation did not want to be disclosed.

17.  There is a presumption in the Irish Act (section 34(12)) that a public body which wants to withhold information is in the wrong and, in the event of appeal to the Information Commissioner, must demonstrate otherwise. Many of the exemptions require the authority to consider the public interest before refusing access.

18.  Originally, it was considered desirable to have different expressions of damage in different cases. In practice it appears to make little difference. The Information Commissioner approaches these matters in a common sense way. In any case, the fact that the public interest has to be considered may raise the damage threshold. By putting a public interest override into the exemptions, you ensure that the exemptions are not an opportunity to withhold information. Rather they constitute a basis for carefully considering the pros and cons of disclosure.

19.  The impact of the Act in government has been to make policy advice sharper, more succinct. Subjective comment and inappropriate reflections are increasingly less evident. FOI has also improved the way services are delivered to the public. Arrangements for dealing with the public are now more user­friendly, and there is a much more professional approach. It has also made Ministers think more deeply about their responsibility for individual decisions.

20.  As regards implementation arrangements, the key issue was training. Unprecedented programmes of training at all levels were provided, supported by overseas experts initially. Departments have generally not been provided with increases in staff. It is important that FOI becomes a routine part of a managers functions, rather than being isolated in a particular section of a department. A handful of departments which have a broader sectoral responsibility for FOI such as Health, Justice and Environment received some small additional staffing.

21.  Demand for information under the Act is probably levelling off. People are hopefully becoming more confident of gaining access to information outside FOI.

  1. The Government adopted an incremental approach in applying the Act to bodies across the public service. Initially it applied to the civil service and to a few bodies close to central Government. Subsequently, within six months, it was extended to Health Boards and Local Authorities. Further extensions of the Act are now in the pipeline. Such an incremental approach to FOI enables necessary preparations in terms of training, publications and organisational arrangements to be systematically put in place. It also facilitates consistent central support to ensure best practice is observed and implemented.

ANNEX 2

FREEDOM OF INFORMATION
A Comparison between the Code of Practice on Access to Government Information, 'Your Right to Know'

  (the Government's White Paper on Freedom of Information) and the draft Freedom of Information Bill


  Code of Practice (1997 edn.)

  White Paper

  Bill

  COVERAGE

Applies to those Government departments and other bodies within the jurisdiction of the Ombudsman (as listed in Schedule 2 to the Parliamentary Commissioner Act 1967); to agencies within departments and to functions carried out on behalf of a department or public body by contractors. The Security and Intelligence Services are not within the scope of the Code, nor is information obtained from or relating to them (although the Ombudsman has claimed access to them for the purposes of an investigation).

Applies to:

·  Government Departments, including non-Ministerial Departments, and their Executive Agencies;

·  Nationalised industries, public corporations, and all the 1,200 Non-Departmental Public Bodies ("Quangos"). Examples range from the Equal Opportunities Commissioner and the UK Atomic Energy Authority to the Royal Botanic Gardens and the Northern Lighthouse Board;

·  the National Health Service;

·  administrative functions of the Courts and tribunals;

·  administrative functions of the Police and Police Authorities;

·  the Armed Forces;

·  Local Authorities;

·  Local Public Bodies, for example Registered Social Landlords and Training and Enterprise Councils;

·  Schools, Further Education Colleges and Universities;

·  the Public Service Broadcasters (for example the BBC, Channel Four, the Radio Authority);

·  Private organisations insofar as they carry out statutory functions;

·  the privatised utilities


Applies to public authorities listed in schedule 1: broadly these are:

·  Government departments;

·  National Assembly for Wales;

·  Armed forces;

·  NHS Bodies (including general practitioners);

·  Local authorities;

·  Registered social landlords;

·  Schools, Colleges, Universities and other educational bodies;

·  Police authorities and forces;

·  Broadcasting bodies;

Also Secretary of State may by Order apply the Act to NDPBs and other bodies which have functions of a public nature. For some bodies, the Act will apply only to those functions specified either in Schedule 1 or in the Order applying it to them.


  EXCLUSIONS

Any body not covered by Schedule 2 of the Parliamentary Commissioner Act 1967

The Code only applies to Government-held information. It does not apply to or affect information held by courts or contained in court documents ("Court" includes tribunals, inquiries and the Northern Ireland Enforcement of Judgements Office). The present practice covering disclosure of information before courts, tribunals and inquiries will continue to apply.


·  Parliament;

·  Security Service, Secret Intelligence Service, GCHQ, Special Forces and the information that they provide;

·  information relating to investigation and prosecution functions of the police, prosecutors and other bodies with law enforcement functions;

·  information relating to the commencement or conduct of civil proceedings;

·  legal advice obtained by the Government from any source, or advice protected by legal professional privilege


Any body not included in Schedule 1 of the Bill, or brought under it by Order. [The Security Service, the Secret Intelligence Service, GCHQ, special forces and any unit required to assist GCHQ are specifically excluded in Schedule 1].

  RIGHT OF ACCESS

There is no commitment that pre-existing documents, as distinct from information, will be made available in response to requests. The Code does not require departments to acquire information they do not possess, to provide information which is already published, or to provide information which is provided as part of an existing charged service other than through that service.

The right of access will be

·  by an individual, company or body;

·  to records or information;

·  of any date;

·  if it is held by the public authority concerned;

·  in connection with its public functions


The right of access will be

·  by any person;

·  to information recorded in any form (Clause 1(1));

·  if it is held by the authority (otherwise than on behalf of another person or by another person on behalf of the authority)

People will be entitled

·  to be informed by the public authority whether it holds the information requested, and

·  if it does, to have that information communicated, either by means of a copy, a summary, or an opportunity to view the information.

The authority has to follow the applicant's preference as to the form in which the request is satisfied as far as is reasonably practicable, or to explain why not (Clause 11).

If information is refused, applicant must be given a notice specifying exemption or other reason (Clause 15).


  GATEWAYS/CONDITIONS ON ACCESS


Tests of reasonableness for judging whether or not to supply the information include

·  whether the information has already been published and is still reasonably available. Disclosure could be refused, but information to help identify the existing publication should be given to the applicant;

·  whether the information is to be published at a future date. The public authority would need to give an indication of the plans for publication;

·  whether the application is specific enough to provide the relevant authority with a reasonable indication of what is being sought. The authority would, in the first instance, need to indicate the nature of the problem and invite the applicant to be more specific;

·  whether there are multiple applications from the same source for related material in order to avoid the previous restriction. Public authorities would have flexibility in such cases over how they treated such applications for charging and cost threshold purposes;

·  whether it is part of a large-scale "fishing expedition" or would otherwise result in a disproportionate cost or diversion of the public authority's resources in order to identify collect, or review the required records. The authority would need to give an indication of why the application caused this problem or—if it intended to meet the application but at a significant charge—the likely cost to the applicant of doing so;

·  whether there are multiple applications from the same source for related material in order to avoid the previous restriction. Public authorities would have flexibility in such cases over how they treated such applications for charging and cost threshold purposes;

·  whether there are large multiple applications for similar information from different sources which are clearly designed to obstruct or interfere with the public authority's business. Here, authorities would clearly have the option of publishing the information at an early stage in the process, thus avoiding the need for repeated disclosure to individuals.

Refusals for these reasons should be appealable to the Commissioner, and there "may be scope" for the Commissioner to mediate.


Applications have to be made

(a)  in writing, (although this includes electronic form, if it is capable of being used for subsequent reference);

(b)  stating the name of the applicant and an address for correspondence, and

(c)  describing the information requested (Clause 4).

The authority is not obliged to give the information if it estimates that the cost of doing so would exceed a limit to be set by the Secretary of State in regulations. Regulations may also specify circumstances in which the authority can treat a number of requests as one request, for the purposes of calculating this (Clause 12).

A public authority is not obliged to comply with a request for information if it appears to the authority that the request is vexatious, or if it has recently given the requester similar information (Clause 13).


  FEES AND CHARGES

Departments, agencies and public bodies will make their own arrangements for charging. Details of charges are available from departments on request. Schemes may include a standard charge for processing simple requests for information. Where a request is complex and would require extensive searches of records or processing or collation of information, an additional charge, reflecting reasonable costs may be notified.

Public authorities covered by the Act should be able to charge a limited access fee per request. This should be no more than £10, to keep it in line with the fee for subject access under Data Protection. Where the request is for an individual's own personal information, the authority holding the information can charge a flat fee up to a maximum of £10. No fees will be charged for access to review and appeals procedures. This would too easily encourage an irresponsible attitude from those dealing with the request in the first instance. Complaints about misuse of fees may be made to the Information Commissioner.


Public authorities will be able to set charging schemes within parameters laid down either in the Act itself or (more probably) an Order made under it. These parameters would require that charging schemes:

·  exclude any power to make a profit, ensuring that charges reflect only "reasonable" costs;

·  should not apply to information which a public authority is required, under the FOI Act itself, to make publicly available;

·  should be structured to fall primarily on the limited number of applications which involve significant additional work and considerable costs, rather than straight forward applications which, for public authorities, should be part and parcel of normal interaction with the public;

·  must provide early notification of any prospective charge to applicants, to enable them to choose whether to proceed with their applications (this may be particularly important where work involving reviewing of documents for sensitive content is likely to reduce the ultimate benefit to the enquirer).


Authority can give applicant a fee notice stating that fee is to be charged. Authority not obliged to comply unless fee is paid within three months (Clause 9).

Fees to be specified in regulations.


  TIME LIMITS

Information will be provided as soon as practicable. The target for response to simple requests for information is 20 working days from the date of receipt. This target may need to be extended when significant search or collation of material is required. Where information cannot be provided under the terms of the Code, an explanation will normally be given.

Time limits for response will be set out in the Act to ensure that applicants do not have to wait an excessive or unreasonable time for responses (2.23).

Authority must comply promptly, and in any event within 40 days after the request is received (or after clarification of the request is received, if necessary). But if the authority has issued a fees notice, the authority doesn't need to comply until the fee is paid (Clause 10).

The period may be varied in regulations, which may prescribe different periods for different cases.


  RELATIONSHIP TO OTHER RIGHTS OF ACCESS

This Code is non-statutory and cannot override provisions contained in statutory rights of access to information or records (nor can it override statutory prohibitions on disclosure). Where the information could be sought under an existing statutory right, the terms of the right of access takes precedence over the Code. There are already certain access rights to health, medical and social services departments, and to personal data held on computer. There is also a right of access to environmental information. It is not envisaged that the Ombudsman will become involved in supervising these statutory rights.


Nothing in the Act is to be taken to limit the powers of a public authority to disclose information held by it (Clause 67).

  DUTY TO PUBLISH

Subject to the exemptions in Part II, the Code commits departments and public bodies under the jurisdiction of the Parliamentary Commissioner for Administration (the Ombudsman):

(i)  to publish the facts and analysis of the facts which the Government considers relevant and important in framing major policy proposals and decisions; such information will normally be made available when policies and decisions are announced;

(ii)  to publish or otherwise make available, as soon as practicable after the Code becomes operational, explanatory material on departments' dealings with the public (including such rules, procedures, internal guidance to officials, and similar administrative manuals as will assist better understanding of departmental action in dealing with the public) except where publication could prejudice any matter which should properly be kept confidential under Part II of the Code;

(iii)  to give reasons for administrative decisions to those affected;

(iv)  to publish in accordance with the Citizen's Charter:

· full information about how public services are run, how much they cost, who is in charge, and what complaints and redress procedures are available;

· full and, where possible, comparable information about what services are being provided, what targets are set, what standards of service are expected and the results achieved.


The Act will impose duties upon public authorities to make certain information publicly available, as a matter of course. These requirements will be consistent with the other provisions of the Act—including its harm and public interest tests (see Chapter 3). They will be broadly along the lines of those in the Code of Practice, namely:

·  facts and analysis which the Government considers important in framing major policy proposals and decisions;

·  explanatory material on dealings with the public;

·  reasons for administrative decisions to those affected by them;

·  operational information about how public services are run, how much they cost, targets set, expected standards and results, and complaints procedures.


Duty of every public authority to adopt and maintain a publication scheme, which must—

(a)  specify classes of information which the public authority publishes or intends to publish;

(b)  specify the manner in which information of each class is, or is intended to be, published, and

(c)  specify whether the material is, or is intended to be, available to public free of charge or on payment.

In adopting a publication scheme, a public authority shall have regard to the public interest in allowing public access to information held by the authority, and

in the publication of reasons for decisions made by the authority (Clause 6).

Schemes have to be approved by the Commissioner, and he may also revoke them.


  EXEMPTIONS

Defence, security and international relations

(a)  Information whose disclosure would harm national security or defence.

(b)  Information whose disclosure would harm the conduct of international relations or affairs.

(c)  Information received in confidence from foreign governments, foreign courts or international organisations.


Information is exempt if disclosure would 'substantially harm' six 'key specified' interests. These are:

·  National security, defence and international relations (including communications received in confidence from foreign governments, foreign courts or international organisations);


National Security: Information is exempt if:

·  it was directly or indirectly supplied to the authority by, or relates to the work of, the Security Service, the Secret Intelligence Service, GCHQ, or special forces etc (Clause 18);

·  if exemption is required for the purposes of safeguarding national security (Clause 19);

Defence (Clause 21): Information is exempt if its disclosure would prejudice:

(a)  the defence of the United Kingdom,

(b)  the capability of any relevant forces to carry out their tasks, or

(c)  the security of any relevant forces.

International relations (Clause 22): Information is exempt if its disclosure would prejudice:

(a)  relations between the United Kingdom and any other State,

(b)  relations between the United Kingdom and any international organisation,

(c)  the interests of the United Kingdom abroad, or

(d)  the promotion or protection by the United Kingdom of its interests abroad, or

is confidential information obtained from another state or international organisation.


  EXEMPTIONS (Continued)






Law enforcement and legal proceedings

(a)  Information whose disclosure could prejudice the administration of justice (including fair trial), legal proceedings or the proceedings of any tribunal, public inquiry or other formal investigations (whether actual or likely) or whose disclosure is, has been, or is likely to be addressed in the context of such proceedings.

(b)  Information whose disclosure could prejudice the enforcement or proper administration of the law, including the prevention, investigation or detection of crime, or the apprehension or prosecution of offenders.

(c)  Information relating to legal proceedings or the proceedings of any tribunal, public inquiry or other formal investigation which have been completed or terminated, or relating to investigations which have or might have resulted in proceedings.

(d)  Information covered by legal professional privilege.







·  law enforcement (including information which would encourage avoidance or evasion of tax etc);























Relations within the UK: Information is exempt if disclosure would prejudice relations between any administration in the UK and any other such administration.

Criminal etc. investigations: Information is exempt if it was obtained or recorded by the authority for the purposes of a criminal investigation, or criminal proceedings conducted by the authority, or other investigation under powers granted in law (Clause 25).

Law enforcement: Information is exempt if its disclosure would prejudice:

(a)  the prevention or detection of crime,

(b)  the apprehension or prosecution of offenders,

(c)  the administration of justice,

(d)  the assessment or collection of any tax or duty or of any imposition of a similar nature,

(e)  the operation of the immigration controls, or

(f)  the maintenance of good order in prisons or in other institutions where persons are lawfully detained (Clause 26).

Legal professional privilege: Information is exempt if a claim to legal professional privilege or (in Scotland) to confidentiality as between client and professional legal adviser could be maintained in legal proceedings (Clause 33).


  EXEMPTIONS (Continued)

(e)  Information whose disclosure would harm public safety or public order, or would prejudice the security of any building or penal institution.

(f)  Information whose disclosure could endanger the life or physical safety of any person, or identify the source of information or assistance given in confidence for law enforcement or security purposes.

(g)  Information whose disclosure would increase the likelihood of damage to the environment, or rare or endangered species and their habitats.


  (See also exclusions)

  (See exclusions)

Effective management of the economy and collection of tax

(a)  Information whose disclosure would harm the ability of the Government to manage the economy, prejudice the conduct of official market operations, or could lead to improper gain or advantage.

(b)  Information whose disclosure would prejudice the assessment or collection of tax, duties or National Insurance contributions, or assist tax avoidance or evasion.



Economy: Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice

(a)  the economic interests of the UK or any part of the UK, or

(b)  the financial interests of

-  the government of the UK,

-  the Scottish Administration,

-  the Executive Committee of the Northern Ireland Assembly, or

-  the National Assembly for Wales (Clause 24).






  EXEMPTIONS (Continued)

Privacy of an individual

Unwarranted disclosure to a third party of personal information about any person (including a deceased person) or any other disclosure which would constitute or could facilitate an unwarranted invasion of privacy.




·  the safety of the individual, the public and the environment.

·  personal privacy.














Personal Information: Information is exempt if it is personal information about the applicant, or if it is held in a computer or filing system, is about someone else and disclosure would contravene the principles set out in the Data Protection Act, or would cause 'unwarranted' substantial damage or substantial distress to him or another; or if it is manual data, if it would contravene the data protection principles; or if it is exempt from the data subject's right of access to personal data under the Data Protection Act. (The principles say that the Data can't be processed unless one of a number of conditions is met, including conditions relating to sensitive personal data).

Health and safety: Information is exempt if its disclosure would, or would be likely to:

(a)  endanger the physical or mental health of any individual,

(b)  endanger the safety of any individual (Clause 30).


Effective management and operations of the public service

(a)  Information whose disclosure could lead to improper gain or advantage or would prejudice:

·  the competitive position of a department or other public body or authority;

·  negotiations or the effective conduct of personnel management, or commercial or contractual activities;

·  the awarding of discretionary grants.

(b)  Information whose disclosure would harm the proper and efficient conduct of the operations of a department or other public body or authority, including NHS organisations, or of any regulatory body.







  EXEMPTIONS (Continued)

Third party's commercial confidences

Information including commercial confidences, trade services or intellectual property whose unwarranted disclosure would harm the competitive position of a third party.

Information given in confidence

(a)  Information held in consequence of having been supplied in confidence by a person who:

·  gave the information under a statutory guarantee that its confidentiality would be protected; or

·  was not under any legal obligation, whether actual or implied, to supply it, and has not consented to its disclosure.

(b)  Information whose disclosure without the consent of the supplier would prejudice the future supply of such information.

(c)  Medical information provided in confidence if disclosure to the subject would harm their physical or mental health, or should only be made by a medical practitioner.




·  Commercial confidentiality (though openness 'should be the guiding principle where statutory or other public functions are being performed, and in the contractual arrangements of public authorities);

·  information supplied in confidence.




Commercial interests: Information is exempt if:

-  it constitutes a trade secret.

-  its disclosure would prejudice the commercial interests of any person (including the public authority holding it) (Clause 34).

Information provided in confidence: Information is exempt if it was obtained from someone else and disclosure would constitute a breach of confidence actionable by the person from whom it was obtained (Cl. 32).


  EXEMPTIONS (Continued)

Internal discussion and advice

Information whose disclosure would harm the frankness and candour of internal discussion, including:

·  proceedings of Cabinet and Cabinet committees;

·  internal opinion, advice, recommendation, consultation and deliberation;

·  projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options;

·  confidential communications between departments, public bodies and regulatory bodies.




·  Information is exempt if it would 'harm' the integrity of the decision-making and policy advice processes in government.

(Factors to be taken into account in determining this include:

-  the maintenance of collective responsibility in government;

-  the political impartiality of public officials;

-  the importance of internal discussion and advice being able to take place on a free and frank basis;

-  the extent to which the relevant records or information relate to decisions still under consideration, or publicly announced.)

But public authorities will be encouraged to make available raw data and factual background material.




  Decision-making and policy formulation: Information held by a government department is exempt if it relates to

- the formulation or development of government policy

-  communications between Ministers of the Crown, including in particular proceedings of the Cabinet or of any Committee of the Cabinet

-  the provision of advice by an of the law officers or any request for the provision of such advice

-  the operation of any Ministerial private office.

Information held by a government department or any other authority is exempt if in the reasonable opinion of a Minister or other qualified person, disclosure

-  would prejudice the maintenance of the convention of the collective responsibility of Ministers

-  would inhibit the free and frank provision of advice, or

-  would inhibit the free and frank exchange of views for the purposes of deliberation, or

-  would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.


  EXEMPTIONS (Continued)













Communications with the Royal Household

Information relating to confidential communications between Ministers and Her Majesty the Queen or other Members of the Royal Household, or relating to confidential proceedings of the Privy Council.



Immigration and nationality

Information relating to immigration, nationality, consular and entry clearance cases. However, information will be provided, though not through access to personal records, where there is no risk that disclosure would prejudice the effective administration of immigration controls or other statutory provisions.

























  Honours: Information is exempt 'if it relates to the conferring by the Crown of any honour'







  Communications with her Majesty: Information is exempt if it relates to communications with Her Majesty, with other members of the Royal Family or with the Royal Household, or the conferring by the Crown of any honour (Clause 29)





  EXEMPTIONS (Continued)

Voluminous or vexatious requests

Requests for information which are vexatious or manifestly unreasonable or are formulated in too general a manner or which (because of the amount of information to be processed or the need to retrieve information from files not in current use) would require unreasonable diversion of resources.

Publication and prematurity in relation to publication

Information which is or will soon be published, or whose disclosure, where the material relates to a planned or potential announcement or publication, could cause harm (for example, of a physical or financial nature).

Research, statistics and analysis

(a)  Information relating to incomplete analysis, research or statistics, where disclosure could be misleading or deprive the holder of priority of publication or commercial value.

(b)  Information held only for preparing statistics or carrying out research, or for surveillance for health and safety purposes (including food safety), and which relates to individuals, companies or products which will not be identified in reports of that research or surveillance, or in published statistics.




  (see above under 'Gateways')








  (see above under 'Gateways)




  (See above under 'Gateways')








  Information is exempt if it is reasonably accessible anyway (even if on payment), or if it is intended to be published and it's reasonable to withhold it until it is (Clauses 16 and 17).







  Information is also exempt if disclosure is prohibited under other legislation, is incompatible with any Community obligation, or would constitute or be punishable or a contempt of court (Clause 35)

  The Secretary of State may add other exemptions, by order (Clause 36).


  PUBLIC INTEREST TEST

Despite the exemptions, in those categories which refer to harm or prejudice, the presumption remains that information should be disclosed unless the harm likely to arise from disclosure would outweigh the public interest in making the information available.

References to harm or prejudice include both actual harm or prejudice and risk or reasonable expectation of harm or prejudice. In such cases it should be considered whether any harm or prejudice arising from disclosure is outweighed by the public interest in making information available.

The exemptions will not be interpreted in a way which causes injustice to individuals.


Any decision on disclosure safeguards the public interest should be a separate, identifiable step in the FOI process. An attempt will be made in the Bill to increase the clarity and certainty of individual decisions by defining what constitutes the public interest.

Public authorities can seek to ensure that decisions under FOI safeguard the public interest first by checking:

·  that the preliminary decision on whether or not to disclose, resulting from the substantial harm test, is not itself perverse. For example, would a decision not to disclose particular information itself result in substantial harm to public safety, or the environment, or the commercial interests of a third party?

and then by ensuring:

·  that the decision is in line with the overall purpose of the Act, to encourage government to be more open and accountable (see paragraph 1.2); or if not, that there is a clear and justifiable reason for this; and

·  that the decision is consistent with other relevant legislation including European Community Law which requires either the disclosure or the withholding of information. In particular, we are concerned to preserve the effectiveness of the Official Secrets Act, and there may in some cases be a need to ensure that a decision taken under the FOI Act would not force a disclosure resulting in a breach of the harm tests that prohibit disclosure under the Official Secrets Act.


If an authority receives a request for information which is exempt from disclosure, it shall consider whether to communicate the information to the applicant in the exercise of its discretion, having regard to all the circumstances of the case, including

(a)  the public interest in allowing public access to information held by public authorities, and

(b)  whether the disclosure to the applicant of the information in question would be in the public interest.

It may refuse to make a decision unless told what use the applicant intends to make of the information, and may restrict the use or further disclosure of the information. It may charge for the information in accordance with regulations, which may prescribe that no fee is payable in certain circumstances, a maximum fee, and how it is calculated (Clause 14).

This obligation does not apply to information which is exempt because it is supplied by the Security Services etc, nor does it apply to information held by a court or tribunal if it relates to judicial functions.


  MINISTERIAL CERTIFICATES




There will be no power for a Minister to override the disclosure powers of the appeals body.

Ministerial certificate can be used to prove that information is exempt because it was supplied by or relates to the work of the Security Forces, or exemption is required for national security (Clauses 18 and 19).

There is an appeal to the Tribunal against the certificate, on the grounds that the Minister did not have 'reasonable grounds' for issuing the certificate (Clause 50).


  PERSONAL INFORMATION


Freedom of Information will apply to all personal data held by public authorities and other relevant organisations, whether on computer or on paper files. It will therefore cover a wider range of information held by public authorities than either the existing or the proposed Data Protection legislation.

The two regimes of Freedom of Information and Data Protection will cover the same ground in providing access for an individual to data held about them by public authorities.

The rights applying under the Data Protection Act will apply to all personal information held by public authorities irrespective of the coverage of the Data Protection regime or the route of access.

As far as is practicable, we will align the systems for access to personal information under Data Protection and Freedom of Information. This is likely to include the means of access, time limits for reply, charges and appeals.

The Commissioner and Registrar should be required, under the Freedom of Information Act, to consult each other and to exchange information on those cases where both jurisdictions come into play. In the unlikely event of a dispute arising between the Commissioner and Registrar, on which they were are unable to reach agreement, this would ultimately be resolved by the Courts.


Requests for personal information by the data subject will be dealt with under the Data Protection Act; requests for personal information by a third party will be dealt with under the Freedom of Information Act (Clause 31).

Amendments to Data Protection Act so that unstructured personal data is accessible under conditions (Clauses 60-64).


  REVIEW AND APPEALS



Complaints that information which should have been provided under the Code has not been provided, or that unreasonable charges have been demanded, should be made first to the department or body concerned.


1. INTERNAL REVIEW

Internal review will be the first step in the FOI appeals process. It will provide a quick, low cost and simple mechanism for resolving many complaints. An internal review should be carried out by an official who was not involved in the initial decision and be completed within a specified timescale.

Generally, an internal review will be a precondition for making a complaint to the Information Commissioner. However, the Commissioner will have the discretion to accept a complaint which has not been the subject of an internal review, for example, where:

·  a complaint concerns unreasonable delay in dealing with an initial request for information or in conducting the internal review itself;

·  the public authority concerned is too small to have its own review procedure. Care will be taken to ensure that internal review procedures do not create an excessive burden for very small bodies.




People will need in the first instance to complain about refusals to give information to the authority itself, which should handle such complaints in accordance with the Secretary of State's Code of Practice (see paras 41-2 of consultation document).

  REVIEW AND APPEALS (Continued)



If the applicant remains dissatisfied, complaints may be made through a Member of Parliament to the Ombudsman. Complaints will be investigated at the Ombudsman's discretion in accordance with the procedures provided in the 1967 Act.

2. INFORMATION COMMISSIONER

The Commissioner's primary role will be to investigate complaints that a public authority has failed to comply with the requirements of the Act either by refusing to disclose information, or by taking an unreasonable time to respond to requests, or by imposing excessive charges for information. He or she will be expected to resolve such cases as quickly and informally as possible. In a similar view, the Commissioner will also hear appeals relating to access to historic records.

The Information Commissioner will be required to:

·  publish an annual report, and special reports where necessary, to Parliament on the operation of his or her function and the operation of the Act more generally;

·  publish reports on the outcomes of investigations and issue best practice guidance on the interpretation of the Act; and




The Data Protection Commissioner will become the Information Commissioner, with a general duty to promote 'good practice', and the observation of the Freedom of Information Act, publication schemes, and a Code of Practice to be drawn up by the Secretary of State. He will

·  publish an annual report, and special reports where necessary to Parliament

·  give advice and publish information about good practice etc (Clauses 40-2).


  REVIEW AND APPEALS (Continued)


·  promote greater general public awareness and understanding of the Act.

The Commissioner will have:

·  the power to order disclosure of records and information which are subject to the Act.

·  the right of access to any records within the scope of the Act and

·  the power to review and adjust individual charges or charging systems, or to waive a charge if disclosure is considered to be in the wider public interest.

·  the right to resolve disputes via mediation.

The Commissioner will also have the right to apply for a warrant to enter and search premises and examine and remove records where he/she suspects records relevant to an investigation.




There will be a criminal offence for wilful or reckless destruction, alteration, or withholding of records relevant to an investigation.


The Commissioner will have

·  power to require an authority to give access to records for the purposes of an investigation, through issuing an information notice (Clause 44);

·  power to decide whether an authority has dealt correctly with an application, and to issue a decision notice (Clause 43);

·  power to issue an enforcement notice if an authority has failed to comply with the requirements of the Act (Clause 45);

·  power to apply to a circuit judge for a warrant to enter premises and search for information, if access has been unreasonably refused (Schedule 3);

·  power to certify the High Court that the authority has failed to comply with his notice, following which the authority may regard this as a contempt of court (Clause 46).


There will be a criminal offence of altering, concealing or destroying etc any information which is subject to a Freedom of Information request.



3. FURTHER APPEAL

No right of appeal to the courts: but a disclosure order, or decision not to grant one, would be subject to judicial review (on whether the Commissioner has properly exercised his or her powers in reaching a reasonable decision; as opposed to question whether the decision was the right one or not).




Data Protection Tribunal renamed Information Tribunal; complainant or public authority may appeal to the Tribunal against decision notice, information notice or enforcement notice (Part V).

There is an appeal to the High Court or Court of Session from the Tribunal on a point of law.


  PUBLIC RECORDS

The Code is not intended to override statutory provisions on access to public records, whether over or under thirty years old. Under s12(3) of the Parliamentary Commissioner Act 1967, the Ombudsman is not required to question the merits of a decision if it is taken without maladministration by a Government department or other body in the exercise of a discretion vested in it. Decisions on public records made in England and Wales by the Lord Chancellor, or in Scotland and Northern Ireland by the Secretary of State, are such discretionary decisions.

FOI Act to cover access to both current and historical material. Rules on this in Public Records Acts 1958 and 1967 and guidance in 1993 White Paper on Open Government to be incorporated into the FOI Act.

Repeals provisions in Public Records Acts 1958 relating to access to and closure of records, and replaces them with the statutory regime for access to and closure of historical records.

  OPEN GOVERNMENT


·  The general public will need a user-friendly "How to use FOI" guide;

·  the public authorities covered by the Act need to be encouraged and helped to fulfil their obligations (whether statutory or otherwise) to pursue active openness—for example publishing internal manuals, performance indicators, giving reasons for decisions and so on;

·  public authorities will need access to authoritative and up-to-date guidance in working with an interpreting the Act;

·  effective training for officials must be organised and provided. A learning culture must be developed as the Act takes effect. For example, case studies of general interest could be assembled, publicised and made the subject of training courses;

·  the operation of the Act needs to be monitored, leading to an annual report to Parliament;

·  there needs to be a central point within government to which the Information Commissioner can turn to ease communication and liaison with the many public authorities covered by the Act.

An FOI Unit will be the champion of openness within government.


The Secretary of State issues Code of Practice for authorities on Freedom of Information; the Commissioner has among his duties that of promoting good practice, and the observance by authorities of the requirements of the Act, publication schemes and the Code of Practice.

ANNEX 3: EXEMPTIONS COMPARED WITH FOREIGN LEGISLATION (TABLE PREPARED BY THE HOME OFFICE)

EXEMPTIONS IN UK BILL

AUSTRALIA

NEW ZEALAND

IRELAND

THE NETHERLANDS

CANADA

Information accessible to the public by other means. (cl. 16)

12

18 (d)

46 (2)


68

Information intended for future publication. (cl. 17)

21 (1)(a) &(b)

18 (d)

10 (1)(d)


26

Information supplied by, or relating to work of, bodies dealing with security matters (cl. 18)


6 (a)

24



National security. (cl. 19)

33

6(a) &31

24

10 (1)(b)

15

Defence. (cl. 21)

33

6(a) & 31

24

10 (1)(b)

15

International relations. (cl. 22)

33 (1)(a)(iii) & (b)

6(a), 6(b) & 31

24

10 (2)(a)

13 &15

The economy. (cl. 24)

44

6(e) & 9(2)(d)

31

10(2)(b)

18

Investigation and proceedings conducted by public authorities. (cl. 25)

37

6(c), 27 & 31

21(1)(a), 23 & 46(1)

10(2)(c) & (d)

16

Law enforcement. (cl. 26)

37

6(c) &31

23

10(2)(c)

16

Judicial functions. (cl. 27)



22 (1)(b) & 46(1)(a)


47

Decision making and policy formulation. (cl. 28)

34, 35, 36 & 47(1)

9~(2)(f)(ii,iii & iv) & (g)

19, 20 & 21 (b) & (c)

11

21

Communications with Her Majesty etc and honours. (cl. 29)


9(2)(f)(i)

46(1)(d) (President)

10(1)(a)


Health and Safety (cl. 30)

37(1)(c) &

6(d) & 9(2)(c) &27 (d)

28(3)


17

Personal information. (cl. 31)

41

9(2)(a) & 27 (c)

28

10(2)(e)

19

Information provided in confidence. (cl. 32)

45

9(2)(ba) & 27

26

10(1)(c)

13, 20 & 27

Legal professional privilege. (cl. 33)

42

9(2)(h) & 27(g)

22 (1)(a)


23

Commercial interests. (cl. 34)

43

9(2)(b)&(e), 9(2)(i),(j)&(k)

21(1)(c), 27 & 31(2)

10(1)(c), 10(2)(b) & 10(2)(g)

18, 20 & 27

ANNEX 4: A comparison of the administrative provisions in Freedom of Information legislation, prepared by Professor Robert Hazell, Constitution Unit, University College London

Procedure

Australia

Canada

Ireland

New Zealand

UK Draft Bill

Comments

Procedure for requests

s11 "Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to-

(a) a document of an agency, other than an exempt document ..."


s4(1) "Subject to this Act, ... every person ... has a right to and shall, on request, be given access to any record under the control of a government institution".

s6(1) "Every person has a right to and shall, on request therefor, be offered access to any record held by a public body ... "

s12(1) "Any person ... may request a Department ... or organisation to make availabe to him ... any specified official information"

cl 8(1) "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".


Cl 8(1) is unique in requiring public authorities to go through a two-stage process: (a) to inform the requester if it holds information of the kind he is seeking; (b) to give him the information. No other legislation requires step (a). You don't have to ask the department if it has information of type x; you just ask for the information

'Neither confirm nor deny'

s25(1) "Nothing in this Act shall be taken to require an agency or Minister to give information as to the existence or non-existence of a document where information as to the existence or non-existence of that document ... would cause the document to be an exempt document by virtue of section 33 or 33A or sub-section 37(1)"

[These are the exemptions for national security, defence, international relations, intergovernmental relations, and law enforcement].


s 10(2) "The head of a government institution may but is not required to indicate under subsection (1) whether a record exists".


s 10 "Where a request under this Act relates to information to which section 6 or 7 or 9(2)(b) applies ... the Department ... dealing with the request may, if it is satisfied that the interest protected by section 6 or 7 or 9(2)(b) would be likely to be prejudiced by the disclosure of the existence or non-existence of such information, give notice in writing to the applicant that it neither confirms nor denies the existence or non-existence of that information".

[This relates to the exemptions for security, defence, international relations, intergovernmental relations, law enforcement, the safety of any person, damage to the economy, trade secrets and commercial information].


cl 8(4): the duty to say whether an authority holds information of the kind specified does not arise where it is disapplied in specific exemptions. Cll 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35 contain specific provisions authorising a 'neither confirm nor deny' response

Overseas legislation permits a 'neither confirm nor deny' response in a much simpler manner.

Procedure

Australia

Canada

Ireland

New Zealand

UK Draft Bill

Comments

Statutory duty to help requesters

s 10(3) "Where a person

(a) wishes to make a request to an agency; or

(b) has made to an agency a request which does not comply with this section,

it is the duty of the agency to take reasonable steps to assist the person to make the request in a manner which complies with this section".



s 6(2) "It shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act ..."

s 13 "It is the duty of every Department ... and organisation to give reasonable assistance to a person, who-

(a) wishes to make a request in accordance with section 12 of this Act; or

(b) in making a request under section 12, has not made that request in accordance with that section; or

(c) has not made his request to the appropriate Department ... ".


Nil

The Home Office say this will be in the code of practice. Overseas it is in the legislation, save in Canada

Reasons for refusal of requests

s 26(1) "Where, in relation to a request, a decision is made relating to a refuseal to grant access to a document ... the decision-maker shall cause the applicant to be given notice in writing of the decision, and the notice shall -

(a) state the findings on any material questions of fact, referring to the material on which those findings were based, and state the reasons for the decision;

(b) ... state the name and designation of the person giving the decision; and

(c) give to the applicant appropriate information concerning -

(i) his rights with respect to review of the decision;

(ii) his rights to make a complaint to the Ombudsman ... "



s 8(2) "A notice under subsection (1) shall specify -

(b) ... the name and designation of the person .. who is dealing with the request,

(d) if the request is refused, ...

(i) the reasons for the refusal, and

(ii) ... any provision of this Act pursuant to which the request is refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision,

(f) particulars of rights of review and appeal under this Act ..."


s 19 "Where a request ... is refused, the Department ... shall ...

(a) give to the applicant

(i) the reason for its refusal; and

(ii) if the applicant so requests, the grounds in support of that reason ...

(b) give to the applicant information concerning the applicant's right, by way of complaint to an Ombudsman, to seek an investigation and review of the refusal".


Cl 15 "A public authority which ... is relying on a claim that the information is ... exempt information must ... give the applicant a notice stating that fact and specifying the exemption or exmptions in question"

A refusal notice under cl 15 will be very bald. Overseas legislation is more helpful to requesters in three respects: in requiring reasons for the refusal beyond stating the exemption; in naming the official dealing with the request; and in giving information about the requester's rights of review and appeal

Procedure

Australia

Canada

Ireland

New Zealand

UK Draft Bill

Comments

Partial access by Deletion of exempt material

s22(1) "Where -

(a) a decision is made not to grant a request for access to a document on the ground that it is an exempt document;

(b) it is possible for the agency to make a copy of the document with such deletions that the document would not be an exempt document ...

the agency shall ... make, and grant access to, such a copy"


s25 " ... where a request is made to a government institution for access to a record that the head of the institution is authorised to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material"

s25 "Where a request under section 7 would fall to be granted but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of exempt matter ... the head of the public body shall prepare a copy of so much of the record as does not consist of the particular matter and the request shall be granted by offering the requester access to such a copy"

s17 "Where the information requested is comprised in a document and there is good reason for withholding some of the information contained in that document, the other information in that document may be made available by making a copy of that document available with such deletions or alterations as are necessary"

Nil

These provisions are a useful reminder to officials that the presence of exempt material does not exempt a whole document.

Overseas legislation also requires the public authority to give the requester the reasons for withholding the exempt material.


Protection against civil or criminal proceedings

s91(1) "Where access has been given to a document and -

(a) the access was required by this Act to be given ...; or

(b) the access was authorised by .. an officer .. in the bona fide belief that the access was required to be given,

no action for defamation, breach of confidence or infringement of copyright lies against the Commonwealth, an agency, a Minister or an officer by reason of the authorising or giving of the access ..."


s74 "... no civil or criminal proceedings lie against ... the Crown or any government institution, for the disclosure in good faith of any record or any part of a record pursuant to this Act or for any consequences of such disclosure ..."

s45(2) "civil or criminal proceedings shall not lie in any court against-

the State, a public body, a head, a director or a member of the staff of a public body ...

in respect of an act to which this section applies ..."


s48(1) "Where any official information is made available in good faith pursuant to this Act -

(a) no proceedings, civil or criminal, shall lie against the Crown or any other person in respect of the making available of that information , or for any consequences that follow from the making available of that information ...

(b) no proceedings ... shall lie against the author of the information .. by reason of that author having supplied the information to a Department ..."


Nil

Home Office may believe that central government is protected by other statutory provisions.

But not all public authorities necessarily will be; and protection may also need to be extended to the author and supplier of information



 
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