Select Committee on Public Administration Third Report


ANNEX 6

Notes by the Freedom of Information Unit, Home Office, on the Draft Bill

  The Freedom of Information Unit has responded at intervals to requests for further information. These have been grouped, wherever possible, under clause numbers rather than as set out in the Unit's memoranda to the Clerk of the Committee. In a few cases, the notes from the Home Office are in response to points made in the oral evidence. These are indicated.

CLAUSE 1

1.   Lord Lester drew attention to the definition of public authority included in the Human Rights Bill. Why has the same approach to defining the bodies to which the Bill will apply not been adopted here?

  Because FOI applications are made direct by a person to an organisation, there needs to be absolute clarity as to whether any particular organisation is covered by the legislation. It is therefore necessary to spell out either in the Bill itself, or in an order, those organisations which are public authorities for the purpose of the legislation.

2.   The White Paper made some references to the overall purpose of a Freedom of Information Act (paras 1.2, 3.19). Freedom of Information legislation in Australia, New Zealand and Canada contains "purpose clauses", stating its intention, which can be used to interpret the remainder of the law, and to provide some guide on interpretation of a public interest test. Freedom of Information Bills drafted by the Campaign for Freedom of Information contain such clauses. In this Bill, there is no such Clause. Why has it been decided not to have a purpose clause?

  There is no need for a purpose clause in legislation if the rights and exemptions are set out clearly. We believe this to be the case with the draft Bill. The addition of a purpose clause could upset the balance between the right of access, the exemptions and the consideration of the public interest.

3.   "Information recorded in any form": this means that information which is known to officials, but not recorded, is not covered. Some have argued that the Bill should cover all information, including that which is known by officials, but has not been committed to paper. Why has it been decided to limit the Bill to recorded information?

  Recorded information means information recorded in any form, not necessarily only on paper—information recorded on tape, or as e-mail, for example, is included. But we think that it woud be unworkable to include information which had not been recorded in any form whatsoever within the scope of the statutory right because of the difficulty of establishing whether such information actually exists.There is a need for absolute clarity when creating statutory rights and obligations.

4.   "designated by an order under section 2": what types of bodies is it envisaged will be designated under section 2? How will they differ from bodies specified in Schedule 1?

  A wide range of bodies could be included in an order under clause 2, for example, non-departmental public bodies and other public sector bodies, such as the public sector broadcasters, private bodies performing public functions (including companies owned by the State or public authorities), and private bodies performing services under contract to the public sector. In the case of private organisations performing public functions, final decisions about the bodies to be included in an order will be made after consultation as required under clause 2(6).

  As explained in paragraph 24 of the Explanatory Notes, in view of the large number of bodies to be brought within the scope of the Bill. We are not at present in a position to consider listing them all in Schedule 1. The bodies covered in the Schedule are the principal organs of central and local Government, and the executive authorities responsibile for law enforcement, education, and health.

5.   "Otherwise than on behalf of another person": what sort of information is envisaged by this, apart from the example given? The provision may delay an application, if the requester applied to the body which holds the information, only to be told that it holds it on behalf of another public authority to which the requester should properly direct the request. How will this be dealt with in the Code of Practice? Will requesters be obliged to apply to the main office of an authority, rather than to the (for example) local office which holds the relevant record?

  This provision is intended to exclude from the scope of the Bill information held by an authority as agent for another person. Whether information is in this category will be determined by the ordinary law of agency.

  The Code of Practice will address the situation of the transfer of requests from one public authority to another. Public authorities will be given guidance on assisting the applicant; this may be either by forwarding the request itself or by providing the applicant with the information to identify the appropriate authority.

  An applicant will not be obliged to identify the correct "part" of a public authority; an application to any part of an authority will be an application to the authority.

6.   "held by another person on behalf of the authority": can you give examples of what sort of information this might be intended to deal with?

  This is principally directed to the situation where an authority passes information to another party to hold it on its behalf. This would cover a private repository of records. It would also cover a computer processor of information on behalf of an authority.

  Training and Enterprise Councils are capable of being brought within the scope of the Bill by order under clause 2(1)(b)(ii).

CLAUSE 2

7.   "The Secretary of State may by order designate": how many such orders are there likely to be?

  The clause provides flexibility as to the number and timing of orders. There are likely to be one or two orders (which would allow for one for non-departmental public bodies and one for the rest if that is the most practical arrangement) initially. There will be a process of review as there is now with the list of non-departmental public bodies included in the scope of the Code of Practice on Access to Government Information and further orders as necessary.

8.   "FUNCTIONS OF A PUBLIC NATURE": THE WHITE PAPER REFERRED TO "STATUTORY FUNCTIONS". IS THE DEFINITION INTENDED TO COVER THE SAME GROUND? IS THERE ANY EXISTING CASE-LAW WHICH WILL ENABLE THESE FUNCTIONS TO BE EASILY DEFINED? HOW EASY WILL IT BE TO SEPARATE PUBLIC AND PRIVATE FUNCTIONS IN ANY ORGANISATION? HUMAN RIGHTS ACT?

  This is not the same as statutory functions, the term used in the White Paper. The term "statutory functions" was too wide and was considered inappropriate for two reasons:

    —  First, many private individuals or bodies exercise statutory powers or are subject to statutory duties. For instance, employers have functions under the health and safety legislation, ships' captains have functions under merchant shipping legislation and auditors have functions under the companies acts. It is not intended to apply the Bill to such persons and to this extent the term "statutory functions" was inappropriate.

    —  Second, in considering whether the Bill should apply to particular bodies, the nature of the functions performed by those bodies is far more relevant than the source of those functions.

  These two factors led to the current wording.

  We believe that the case law being developed by the courts in relation to the bodies that are amenable to judicial review will exert a great influence on the interpretation of "functions of a public nature" in the Bill. In answering the question whether a body is so amenable the courts are focusing much more on the nature of the functions with which the body is charged rather than on the source of those functions.

  The starting point is that the body must have a public element; it must be seeking to achieve some collective benefit for the public or a section of it and the public must accept its authority to do so. The courts consider a number of factors such as:

    (i)  whether, but for the existence of the body performing the function, the Government would feel compelled to regulate the activity;

    (ii)  whether the body was established under the authority of the Government or is woven into the fabric of government regulation;

    (iii)  the extent and nature of the body's functions; and

    (iv)  whether its powers are derived from a consensual submission to jurisdiction.

  None of these factors is conclusive but each will be given appropriate weight in the context of a specific case before a court. Whilst it may be difficult in certain cases to distinguish between private and public functions it is a task with which the courts are familiar from the judicial review context.

  In the Human Rights Act 1998, section 6(3)(b) uses the expression "any person certain of whose functions are functions of a public nature". The expression is used for the purpose of the definition of "public authority" for the purposes of that Act (it is unlawful for public authorities to act in a way incompatible with a Convention right). Given the different context in which the phrase is used in the Human Rights Act we do not envisage the courts necessarily having regard to its meaning under that Act when interpreting the phrase in the context of the FOI Bill.

9.   "Is providing under a contract made with a public authority any service whose provision is a function of that authority": what is this intended to cover which is not covered by "functions of a public authority"?

  This provision allows contractors to be designated by order under clause 2(1)(b)(ii) where the contract with a public authority is to provide services and the provision of those services is a function of the authority. It is not necessary that the contractor itself should be performing functions of a public nature. It thus covers a different class of persons to those covered by subsection (1)(b)(i) (although some contractors may well fall into both provisions). A couple of examples may assist.

  Under the Employment and Training Act 1973, section 8, the Secretary of State has the duty to secure the provision of careers services for assisting persons undergoing education. Section 9 confers a power on the Secretary of State to secure the provision of such services. Under section 10 the Secretary of State may perform his duty under section 8 or exercise the power conferred by section 9 by making arrangements with local education authorities or persons of any other description. Since the duty remains with the Secretary of State it may be that the person with whom the Secretary of State enters into an arrangement with is not performing a public function in the required sense.

  The Deregulation and Contracting Out Act 1994, section 69 provides for the exercise of a function of a Minister or office-holder by such person as may be authorised by the Minister or office-holder whose function it is. However, section 72(2) provides that anything done or omitted to be done in connection with the exercise of the function is treated as done or omitted to be done by the Minister or office-holder. Given this provision it may be that the authorised person is not performing a function of a public nature in the required sense.

10.   "The Secretary of State shall consult every person to whom the order relates": who will this mean? Solely the authority concerned?

  This provision is in subsection (6) which also provides "or persons appearing to him to represent such persons". The Secretary of State will consult any person whom he is considering designating by order. If there are large numbers of such persons and individual consultation would be disproportionately onerous he may consult persons representative of those concerned, such as trade or professional associations.

  The subsection does not require the Secretary of State to consult more widely. However, as a matter of good administrative practice it is expected that the Secretary of State will consult other persons whom he believes have a legitimate and direct interest in the order.

11.   Hybridity: Would the orders under this Clause give rise to any question of hybridity?

  An order made under clause 2(1)(b) might well give rise to questioning hybridity. Clause 69(5) provides that if, but for that subsection, an order under clause 2 would be hybrid it shall proceed in either House as if it were not.

CLAUSE 3

12.   "Refers to a public authority only in a particular capacity": which entries in Schedule 1 refer to an authority in a particular capacity?

  Schedule 1 refers to a number of authorities only in a particular capacity: at paragraphs 16, 17, 56 and 57.

13.   3(2): under this provision, the Secretary of State may apply the Bill to public bodies or individual office-holders only for certain of their functions. For which bodies is it expected that this will be used? For what types of functions? How easy will it be to specify these under 3(3)?

  The power to designate an authority only with respect to certain functions in subsection (2) would apply to any authority capable of being designated under clause 2(1)(a), ie non-departmental public bodies and other public sector bodies meeting the specified conditions. No decision has been taken as to whether this power will be used in respect of any authority. We will review the need for this provision in light of comments made during the consultation process.

  We do not believe that it will be prohibitively difficult to specify the public functions of authorities to be designated under clause 2(1)(b)(i). It should be remembered that it is not necessary to specify all the public functions of such authorities, only those which have been identified as appropriate to be brought within the scope of the Bill. In most instances we envisage the function to be specified by reference to the source of the function, eg a statutory provision.

CLAUSE 4

13.   "Is in writing": What situation is the phrase "capable of being used for subsequent reference" intended to deal with? Does an application have to be made by the applicant himself or herself, or could it, for example, be telephoned to an official, who would write it down? If the latter, is it intended that this should be a normal system of application, which departments will be encouraged to use?

  There is a need, if a dispute arises, to be certain as to the specifics of the request. Therefore the nature of any electronic request must be such that it can be reproduced, or is capable of being reproduced, as evidence in the event of a subsequent complaint.

  Telephone requests will not, of themselves, be regarded as fulfilling the conditions for a request to be "in writing"—as a conversation is not received in legible form. But the Code of Practice is likely to recommend that authorities should write down telephone requests and send them to the applicant for confirmation that the details of the request were correct. In such cases it would be the confirmation which would constitute the request.

14.   "States the name of the applicant and an address for correspondence": applications cannot be anonymous. Will there be anything to prevent one person (or a company) applying on behalf of another?

  There is nothing to stop one person applying on behalf of another, but, as applications are in the first instance "purpose blind", there will be no difference between such an application and one on the applicant's own behalf.

15.   "Describes the information requested": it will be difficult for applicants in certain circumstances to know precisely what information they are looking for. Will authorities be required to assist applicants in identifying the information through the Code of Practice? If so, why should the obligation not be on the face of the Bill?

  The Code of Practice will provide guidance to authorities to help them assist applicants to identify the information, so that such assistance becomes a matter of good practice. It was however felt inappropriate to make this duty to assist legally binding. The scope of such a duty would be very unclear, depending upon the needs of the applicant. It would also be difficult to enforce such a vague duty. It would shift the onus of identifying the information from the applicant to the authority.

 CLAUSE 5

16.   "shall be known instead as the Information Commissioner": under the Data Protection Act 1998, the Commissioner was appointed for "such term not exceeding five years as may be determined at the time of his appointment" (Schedule 5, paragraph 2(1)). There is no change made to that provision in the Bill. Under what conditions will the appointment of the Information Commissioner be made?

  The Data Protection Registrar is appointed by Her Majesty by Letters Patent for the purpose of administering the Data Protection Act 1984. The present incumbent, Mrs Elizabeth France, will reach the end of her first five year term of office on 31 August 1999. It is the intention to offer the Registrar reappointment on the expiry of her present term of office. The Data Protection Act 1998 provides for the continuation of the office of Data Protection Registrar under the new title of Data Protection Commissioner. The draft FOI Bill expands the post of Data Protection Commissioner to embrace FOI enforcement, under the broader title of Information Commissioner. The Data Protection Act 1984, which is still expected to be in force when the Registrar's current term of office expires, permits reappointments to be for fixed five year terms only. The reappointment will, therefore, be for five years but subject to any other arrangements that may be made in the FOI Bill.

  Our present thinking is that Elizabeth France will have the task of bedding-in the new regime and preparing for implementation. When we are in a position to commence the Bill we will fill the position by way of open competition.

CLAUSE 6

17.   "To adopt and maintain": no timescale is set for the adoption of a publication scheme. Will there be any provision either in the Bill or Code of Practice for a deadline by which each authority should have a scheme in place?

  An authority must have a publication scheme in place immediately the clause is commenced.

18.   "A scheme which relates to the publication of information": are publication schemes meant to include any information about the availability of records within the authority—what records exist, etc, in order to help requesters identify what they need to look at—or are they solely about publication? If so, will there be any other provision (for example in the Code of Practice) to encourage them to publish or provide lists of information held? Won't subsection (2) tend to discourage authorities from adopting a wider view of what ought to be included in the publication schemes? What sort of information are public authorities expected to put in their publication schemes?

  The main purpose of the scheme is to list the information that the authority has published or intends to publish. In addition, the schemes are intended to serve as a guide to accessing those publications. The schemes will of course be subject to approval by the Information Commissioner, and she will doubtless take into consideration the breadth of the scheme in forming her opinion.

  It is not intended that there will be an obligation placed on authorities either in the Bill or in the Code of Practice to make available lists of information held. This is simply not practicable.

19.   "Approved by the Commissioner": what are the consequences to the public authority of issuing a scheme not approved by the Commissioner; or of not issuing a scheme at all? (clause 6 of the Bill is covered by the Commissioner's powers to issue an enforcement notice under clause 43).

  An authority that adopted a scheme not approved by the Commissioner, or that did not adopt a scheme at all, would be in breach of the obligation in clause 6(1). The Commissioner could therefore issue an enforcement notice under clause 45. Such a notice could specify the steps required to be taken by the authority to comply with clause 6. If the authority does not comply with the notice the Commissioner may certify this fact to the court, and the court may deal with the authority as if it had committed a contempt of court.

20.   "From time to time to review": how often will authorities be expected to review their publication schemes?

  An authority will be expected to review its scheme at reasonable intervals. It is not intended to set a specific period in the Bill. The review period will vary from authority to authority and will need to have regard to any changes in the functions of the authority and the developing practice under the Bill.

21.   "A public authority shall have regard to the public interest": it is unclear whether the Commissioner will be able to take a view on whether or not the authority should publish certain types of information because it may be in the public interest to do so. Will the Commissioner be able to substitute his or her own judgement on how the public interest may be interpreted in drawing up a publication scheme? Why was it decided to use this formulation, rather than directly obliging the authority to publish reasons for decisions?

  The Commissioner could refuse to approve a scheme if she felt the public authority had not properly taken the public interest in allowing access to information into account. To this extent the Commissioner will be able to substitute his view for that of the authority as to the public interest when approving schemes. However, the Commissioner cannot rewrite the scheme proposed by an authority; but retains the sanction of withholding approval in an appropriate case.

  In relation to the public interest in the publication of reasons for decisions, this approach was adopted in the Bill so as to avoid codifying the general administrative law on this issue. The courts are still developing the jurisprudence on this issue. However, clause 15 does provide that reasons must be given to the applicant when an authority refuses a request to any extent.

22.   What would be the consequence for a public authority if it failed to publish a class of information which it had said it would publish in its publication scheme?

  If an authority failed to publish any information which it had said it would publish in its scheme, the primary sanction would be a practice recommendation issued by the Commissioner under clause 41(1). Furthermore, the Commissioner could, in an appropriate case, revoke approval for the scheme.

CLAUSE 7

23.   "In relation to public authorities falling within particular classes": how will the classes be defined? Is it within the Commissioner's powers to decide whether or not a particular authority belongs within a class?

  The classes will be defined by the Commissioner since it is the Commissioner who is responsible for approving the schemes. An authority or representative body of authorities could submit a model scheme for approval, but even here the final decision on the definition of the group rests with the Commissioner since if he is unhappy with the proposed grouping he may refuse to approve the model scheme. Authorities are not obliged to adopt a model scheme which has been approved by the Commissioner—they may choose to submit their own scheme for approval instead.

CLAUSE 8

24.   "Whether it holds information of the description specified in the request": how narrowly will this be interpreted? Will authorities be encouraged to seek to help the applicant to define their request? If so, then why should this duty not be in the Act itself?

  This is not defined in the Bill. The words will be given their ordinary meaning. If an authority were taking an overly restrictive interpretation of these words the Commissioner would be able to review the decision and issue either a decision notice or enforcement notice.

  The Code of Practice to be issued by the Secretary of State will expect authorities to assist applicants in defining the information requested. The Code will make it clear that the Secretary of State believes such assistance is desirable as a matter of good practice. However, it is felt that it would be inappropriate to include an administrative matter such as this on the face of the Bill. What would be required may differ greatly from case to case. The less well defined the original request the greater the need would be for assistance from the authority. To place an obligation on the authority to assist in such cases would shift the onus of identifying the information onto its shoulders. The practical arrangements for providing assistance to applicants might also vary from authority to authority depending on the nature of the authority's business, its organisation and the number of requests for information received.

25.   "Such further information as it may reasonably require": what does the test of reasonableness mean in practice?

  "Reasonableness" requires that the request for further information is one that any reasonable authority could have made. The further information sought can only relate to matters which are relevant to identifying the requested information, eg the information requested cannot, at this stage, relate to the applicant or his motives. Nor can the authority request information of such a nature that the applicant cannot be expected to have, eg the file number or exact location of the information sought. The authority can require information about the circumstances in which the applicant believes the information was created, the year of its creation or other such matters which may enable it to identify the information requested.

CLAUSE 9

26.   Can you provide any further information about the fee structure that is intended, and how the fees will be determined? What sort of disbursements might be regarded as proper to charge? Will the regulations be published in draft?

  Under this clause we propose to allow authorities discretion to charge up to 10 per cent of the marginal costs of providing information and in addition the full cost of disbursements.

  By "marginal cost" the Government has in mind the staff cost and any associated costs such as computer processing (but excluding the fixed costs of staff accommodation). The costs would relate to locating the information and preparing it for disclosure, for example, any necessary editing to remove exempt material or preparing a summary requested under clause 11.

  Disbursement costs are expected to cover such things as copying, postage and, where someone has asked for the information to be provided on a computer disk, the cost of the disk.

  The fee structure will apply regardless of the identitity of the applicant or the purpose of the request. The Government accepted the recommendation of the Select Committee on Public Administration in their report last year that there should not be a two-tier charging structure.

  When an authority discloses information under the discretionary provision (clause 14) it will be able to charge a higher fee (all marginal costs plus disbursements). The Bill does not affect the power of authorities to charge for information available to the public by means other than the FOI provisions.

  No decision has yet been made as to whether to publish the regulations in draft, but we expect there to be reasonable consultation with interested parties both within the public sector and elsewhere before regulations are laid before Parliament.

CLAUSE 10

27.   "Forty days": can you explain why it is necessary to have a limit of 40 days?

  It should be noted that the obligation in clause 10(1) is to comply with a request for information promptly and in any event before the end of 40 days. The Commissioner may serve a decision notice (clause 43) or an enforcement notice (clause 45) on an authority which failed to deal with a request for information promptly, even though it dealt with it within 40 days.

  The period of 40 days represents a reasonable balance between the right of the applicant to have the information communicated to him within a reasonable time and the desire not to make the obligation on the authority so onerous that it interfered with its normal functioning. The period is also the same as that in the Data Protection Act 1998. Since it is envisaged that requests will be made for mixed information of personal and non-personal information it seems sensible for the periods for dealing with the requests to be the same.

  Authorities will still be expected to comply with any more demanding performance targets for replying to correspondence.

28.   "Where the authority has given a fees notice": will there be anything to prevent an authority giving a fees notice at the end of the 40 day period, in order to secure further delay?

  There is no express prohibition on an authority serving the fees notice on day 39. However, any undue delay in serving a fees notice, particularly if it were done for the purposes of delaying compliance with a request, would be contrary to the authority's obligation to deal with a request promptly.

  Furthermore, an authority that waited until day 39 before serving a fees notice would only have one further day in which to comply with the request if the applicant pays the fee within three months.

29.   "The Secretary of State may by regulations provide": how is it intended that this provision may be used? In what "cases" might different periods be prescribed? Could this provision be used to create a longer period?

  It is intended that regulations may provide for different periods in respect of different classes of information. In particular, when the Bill comes to deal with environmental information, the Aarhus Convention requires requests to be dealt with within one month of the request, although this can be extended to two months in certain circumstances.

  It is not intended at this stage to use the provision to impose a longer period, but a longer period could be specified if the period of 40 days proves so onerous on small authorities, for instance, general practitioners, that it interfered with their normal functioning.

CLAUSE 12

30.   Can you provide any information on how the "appropriate limit" is likely to be calculated?

  As noted in paragraph 59 of the Consultation Document, the Government is minded to set the appropriate limit at £500: that figure relating to the marginal cost of locating and disclosing the information along with disbursements. (For comparison, the disproportionate cost figure for written PQs is also £500.) Beyond that, authorities will not be obliged to provide information except at their discretion.

  Marginal costs and disbursement costs were defined in our reply on clause 9.

CLAUSE 13

31.   Subsection (2) permits an authority not to comply with a request which is "identical or substantially similar" to one it has already responded to unless a reasonable interval has elapsed. How do you expect "substantially similar" to be interpreted?

  Substantially similar will be interpreted by the Commissioner according to the ordinary meaning of the words. It will inevitably be a case by case decision and we would expect that one criterion would be whether any new information would be disclosed—or whether it is reasonable to expect that any new information would be disclosed—through the second or subsequent application.

CLAUSE 14

32.   The Information Commissioner will not be able to determine the public interest, there may be no group of reports from the Commissioner building up a body of interpretation on the meaning of the phrase. Will there be any means of achieving consistency in decision-making on the public interest?

  The Commissioner will have the jurisdiction to review the decisions made by authorities pusuant to clause 14, although she will not be able to require information to be disclosed. The Commissioner will be able to specify the matters to which the authority must have regard when making its decision. This power (under both clauses 43 and 45) should lead to a body of decisions by the Commissioner which will assist in the interpretation of the public interest and contribute to consistency in decision making.

33.   "in allowing public access": this is the only definition of the public interest in the Bill. What will be its effect? There is no indication of the relative weight that this interest (or the public interest in disclosure of the information) should be given and how it should be balanced with other considerations, such as whether or not any harm would be caused by disclosure. Is there anything in the Bill (or is there intended to be any other guidance) that would lead the authority doing the consideration to give particular weight to the public interest?

  The effect of subsection (3)(a) is that the authority is obliged to take a particular aspect of the public interest into account when exercising its discretion. It does not, however, require any particular factor or interest to be given more weight than another. The essence of a decision under clause 14 is that Parliament would have decided that no automatic right of access should exist in relation to specified information. The authority exercising its discretion would have to balance against that the general public interest in access and the public interest in the disclosure to the applicant. It is not possible in the abstract to specify which interest should be given greater weight in any particular case. It will depend on the particular circumstances.

34.   "the applicant's reasons for requesting the information and as to any use which he proposes to make of the information": what sort of reasons or use is it hoped to exclude? Why is this provision incorporated? Can you provide any examples of similar provisions in other Freedom of Information legislation?

  The ability to consider the applicant's reasons for requesting the information is not intended to exclude particular reasons. It is envisaged that there may be circumstances where disclosure to the public at large may not be appropriate, but where disclosure is appropriate to particular individuals. For instance, it may be appropriate to disclose to the relatives of a person who was killed in an accident information which was held by the authority for the purposes of an investigation into the accident.

  We know of no similar provisions in other FOI legislation. Overseas legislation has a different structure and does not provide for discretionary disclosures to particular applicants.

35.   "may impose such conditions": if such conditions are broken, what would be the consequences for the requester? If it is in the public interest to disclose a piece of information, why should it be possible to limit the extent of disclosure?

  The power to disclose information subject to conditions is intended to lead to greater openness than would be the case if the authority had no ability to control the use of the disclosed information. Any conditions imposed would have to be reasonable and would be regulated by the Commissioner. There may be instances where disclosure of information to the applicant is appropriate due to the particular circumstances but wider dissemination is not appropriate (such as the example given above). In such cases it is right that the authority has the ability to ensure that the public interest in preventing that wider dissemination is protected. Without the power to disclose information subject to conditions an authority may well properly decide not to exercise its discretion to disclose.

  If an applicant were using information contrary to the terms on which the information was disclosed, the authority's course of action would be for breach of confidence. The authority could seek to enforce this confidence by applying for an injunction to restrain further dissemination.

36.   "such fee as may be determined": is it envisaged that fees payable under clause 14 would differ from fees payable for other requests?

  It is envisaged that fees under clause 14 may differ from fees payable under clause 8. In particular, where the cost of providing information exceeds the cost ceiling provided for in regulations under clause 12, an authority may well be prepared to supply the information if more of its costs are met.

37.   "subject to sections 18(3) and 27(2)": the duty to consider the public interest does not apply in respect of information supplied by, or relating to the work of, bodies dealing with security to or court records on a "particular cause or matter". Why should there be no duty to consider the public interest in disclosure in either of these cases?

  The Government has decided that the organisations set out in clause 18(3) and any information relating to their work shall not be subject to the provisions of this Bill, except and insofar as they are already covered by the Public Records Act for historical records. It therefore follows that information held about their work should not be subject to the statutory requirement to exercise any discretion to disclose information.

  Clause 27(2) provides that clause 14 does not apply in relation to court records. Disclosure of such records is regulated by the courts themselves, insofar as the documents are not public. This separate discretionary access regime is unaffected by the Bill. Further, courts and tribunals themselves are not within the scope of the Bill and so clause 14 could not be applied to the right decision makers in relation to such records.

38.   The Campaign for Freedom of Information have argued (Q65) that most cases where it is held to be necessary to impose conditions on the use of information which has been disclosed in the exercise of an authority's discretion are covered anyway by more specific legislation. Do you accept this?

  We do not accept the Campaign's assertion. For many public authorities the discretion to disclose is at large—it is not subject to statutory authority. In other cases—for example personal information, the application of conditions may, in certain circumstances, make a disclosure lawful. For example, the disclosure of personal information to a third party may be unfair in terms of the Data Protection Act, but disclosure to one person may be acceptable. Thus the imposition of conditions would make a clause 14 disclosure, in these circumstances, lawful.

39.   Is there any obligation on an authority, when deciding not to disclose information in the exercise of its discretionary power to do so under clause 14, to give reasons for not doing so? In responding to a decision notice made under clause 45(2) will the authority need to explain the reasons behind its decision (particularly if it continues to be not to disclose the information)? If the authority responds to a decision notice under clause 45(2) by saying that it has considered those things which the Commissioner has directed it to consider, and maintains its earlier decision, and the Commissioner has no evidence to show that it has not done so (which might open the way to a certificate to the court under clause 46), is it open to the Commissioner to take the matter further in any way?

  Under the provisions of clause 15 a public authority is obliged only to state that it has considered disclosure under clause 14, but decided not to exercise its discretion, or that it has not yet reached a decision. Where the authority has recorded the reasons for its decision, it would be obliged to disclose those reasons under clause 8, in response to a request (unless that information was itself exempt); we would therefore expect that it would normally do so, unless that information was itself exempt by virtue of another provision in the legislation. the general duty under administrative law to give reasons could also be relevant.

  If an authority did not give the Commissioner sufficient information to enable him to determine whether a decision notice had been complied with properly, he could issue an information notice under clause 44.

CLAUSE 14(6)

Note by Home Office following the meeting on 22 June

  39A  There was some discussion about how conditions made under this subsection could be enforced. They would be enforceable as a civil law matter under the law of confidence. There is no question of the creation of an offence here and therefore no issue of prosecution.

CLAUSE 15

Note by Home Office following the meeting on 6 July

  39B.  The issue in question was how much information public authorities would have to give under the provisions of clause 15, if it is claimed that information is exempt. The clause specifies only that the exemption being relied upon should be notified, However, guidance will be given, possibly in the Code of Practice, that fuller reasons should be given where to do so would not, itself, cause the prejudice in question. Where reasons for refusal, in general or in a particular case, are recorded by the authority, then it would have to supply the information on request to the applicant in any event, at least to the extent that any exemption did not apply. There is, therefore, little point in refusing to do so straightaway.

  Clause 15, and the Bill as a whole, do not exist in a vacuum, and we do not expect the Bill's statutory duty to give a short form of reasons to be interpreted exclusively. The scope and extent of a duty to give reasons as a matter of general administrative law is currently subject to a considerable amount of judicial development; if this very "live" area of law moves ahead of the narrowest construction which could be placed on clause 15, we fully expect that construct to be expanded, and if necessary superseded. In short, clause 15 is intended to put some duty to give reasons beyond doubt, but we consider that the full extent of that duty should be capable of fitting the contours of the general law on giving reasons, as it develops

CLAUSE 16

40.   "even though it is accessible only on payment": it may be possible to deny access to information if the information is sold commercially, or is made available for inspection in an inconvenient manner. Does subsection (2), by defining reasonably accessible, prevent the Information Commissioner determining whether an authority is selling information at a reasonable price, or whether it is right to sell particular information (which it might be in the public interest to make more widely available), or whether it is providing sufficient access to information which it is obliged to make available? If not, how can one stop authorities channelling Freedom of Information applications towards more expensive regimes? Will the Commissioner be able to challenge the charging regime of an authority if the information is not required to be made available under statute?

  The Commissioner will not be able to challenge directly an authority's charging regime. However he will have indirect leverage over the fees charged.

  Firstly, such fees should form part of the publication scheme which the authority is required to adopt. The Commissioner can refuse to approve a scheme if he feels the charging regime is unreasonable given the reasonable commercial interests of the authority and the public interest in allowing public access to information. This refusal to approve could relate to both the fact of, and level of, a charge.

  Secondly, the Commissioner will be able to review the authority's decision that information requested is otherwise reasonably accessible. If the Commissioner decides that the terms on which the information is made available, including the amount of any payment required, are such that the information could not be said to be reasonably accessible, he could issue a decision or enforcement notice accordingly.

Note by Home Office following the meeting on 6 July

  40A.  I understand that there was a concern that individual applicants would not be able to seek reasons for administrative decisions in particular cases under clause 8, if authorities make general statements of reasons available under clause 6 (publication schemes); because clause 16 would apply.

  We do not share this concern. If information specific to a case is not made available under clause 6, an applicant can apply under clause 8. The clause 16 exemption would not apply in respect of any information not made available under clause 6. Such information would therefore be available to an applicant under the provisions of clause 8, unless otherwise exempt.

CLAUSE 17

41.   "with a view to its publication": will this apply only to information held specifically so that it can be published, but not to information held which the authority may decide later to publish? Or is it intended to apply to both?

  This exemption is intended to apply only to information which, at the time of the request, is held by the authority with a view to its publication, ie information that the authority specifically intends to publish. If the authority has no intention to publish the information at the time of the request the exemption will not apply, ie it is not enough that the information requested is of a class which could be published by the authority.

42.   "publication . . . at some future date": will there be any guidelines on how far in the future publication can be for withholding it to be acceptable? Will the exemption still be held to apply if an authority has failed to publish information for some time after an original request?

  There is no set period of time within which the authority must be intending to publish the information. However, subsection (1)(b) provides that the exemption applies if it is reasonable in all the circumstances to withhold the information until the date of publication. The length of the period between the date of the request and the intended date of publication will clearly be an important factor for the authority (and the Commissioner) in considering the possible application of this exemption.

CLAUSE 18

43.   Tribunals are included among those bodies effectively excluded from the Bill under this clause. Has the case for allowing their administrative functions to be open been considered?

  Clause 18 exempts as a class all information directly or indirectly supplied by or relating to the work of certain bodies dealing with security matters. The bodies listed (clause 18(3)) include the Interception of Communications Tribunal, the Security Service Tribunal and the Intelligence Services Tribunal. These bodies are listed on the grounds that their work is wholly concerned with security and intelligence matters, and in particular the activities of the security and intelligence agencies. It is considered that they woud not be able to carry out their work effectively if their activities or even their administrative functions, were subject to freedom of information legislation.

CLAUSE 19

44.   "At any time was": why is it necessary to use certificates to prevent disclosure [of] information which could have risked national security at some time in the past?

  The certificates will not be capable of being used to enable an authority to withhold information on the ground that disclosure could have risked national security at some time in the past. The exemption under clause 19 can only be properly claimed where it is required for the purpose of safeguarding national security". It is important to bear in mind that reliance on the exemption does not itself depend on the issue of a certificate; the certificate is simply evidence of the propriety of reliance on the exemption, and will only come into active play where that propriety is challenged (at which point the special evidential status accorded to the certificate by clause 19(4) will afford additional protection to the authority). It is possible, therefore, that a request for information may properly be refused by an authority in reliance on clause 19, in circumstances where there is no relevant existing certificate; that refusal may then be challenged later, at which point the authority may approach a Minister to certify that the exemption was, at the time the request was refused, required for the purpose of safeguarding national security. The words "at any time was" in clause 19(4) are necessary to ensure that the certification is capable of dealing with (that is to say confirming or protecting) a past reliance on the exemption, but do not have the effect that the exemption is capable of applying to circumstances where the necessity of withholding the information on national security grounds is itself past.

45.   "prospective effect": why is it necessary to issue certificates in advance under clause 19, but not under clause 18?

  As explained in response to the previous question, it is never necessary to issue certificates in advance. There are, however, some differences in the functions of certificates under clause 18 and clause 19 which point to the desirability in some cases of being able to issue a certificate under clause 19 which is prospective in effect. The certificates under clause 18 are essentially capable of dealing with only one issue—the question of whether or not information requested, as a matter of fact, was supplied by or related to the work of the specified security agencies. Their function is therefore envisaged as confirming, in any disputed case, whether individual pieces of information belonged to the protected class. The certificates under clause 19, by contrast, will, as well as applying to individual disputes about reliance on the exemption, themselves be capable of creating or defining a protected class of information in respect of which the exemption will necessarily apply—for example, a certificate may assert the applicability of the exemption to all requests for information relating to a particular operation. The capability of prospective effect affords comprehensive protection and avoids the need for repetitious certification in serial cases relating to the same operation. The issue under clause 19 which is more strictly parallel to that under clause 18—namely disputes about whether in an individual case certain information belongs to the protected class described in a certificate—is addressed separately in clause 52(4) by a presumption (subject to appeal) that a certificate applies where the authority asserts as much.

CLAUSE 2046.   WHY IS THIS CLAUSE NECESSARY?

  This clause contains three supplementary provisions relating to the operation of the national security certificates provided for in clauses 18 and 19.

  Clause 20(1) creates a presumption of authenticity for a document purporting to be a certificate. The function of the certificates is evidentiary. Subject to the appeal provisions for challenging a certificate, they constitute conclusive proof of the application of the exemptions in question—and must therefore be treated as such for all purposes, including by the Commissoner and the courts. This evidential status is buttressed by the presumption of authenticity, so that an authority need not be put to the proof that a certificate is what it purports to be—which would be burdensome, and could be used as a collateral means of probing behind and underming the conclusive status of the certificate.

  Clause 20(2) creates a similar presumption of authenticity for a document purporting to be a certified copy of a national security certificate. It enables the Minister to certify the validity of a number of copies of the certificate for the purposes, for example, of issuing copies to more than one person.This is particularly important where the certificate in question is issued under clause 19 in general terms, where it would not be convenient to have to produce a single original on every occasion on which it was required.

  Clause 20(3) restricts the class of Ministers who may sign a national security certificate to Cabinet Ministers and Law Officers. This is an expression of the policy intention to restrict the issue of certificates to the highest level, reflecting the seriousness attached to the act of certification and the matters certified.

  All three of these supplementary provisions mirror the equivalent provisions of the Data Protection Act 1998 (section 28(8)-(10)).

 CLAUSE 21

47.   "would, or would be likely to, prejudice": the Government argues that this requires that the prejudice is probable prejudice, not just possible prejudice, as implied in the Code's test of a "risk, or reasonable expectation or prejudice" (para 36). In the case of the Bill, it says, the prejudice "must be real, actual or "of substance". In what other Acts is the phrase "would , or would be likely to, prejudice" used? Can you show how it has been interpreted in these cases? Can you compare it with the phrases indicating the degree of harm used in other legislation?

    "would, or would be likely to, prejudice":

  This or similar expressions, are used in a number of other Acts. For example:

    (i)  section 5(a) of the Wireless Telegraphy Act 1949 (offence of sending a mesage which, inter alia, is likely to prejudice the efficiency of any safety of life service).

    (ii)  paragraph 4 of Part II of Schedule 12A to the Local Government Act 1972 ("information...is exempt information if and so long as its disclosure to the public of the terms would prejudice the authority in those or any other negotiations concerning the property or goods or services"). Also paragraph 5.

    (iii)  section 24 of the Police Act 1997 (prejudice to the efficiency and effectiveness of NCIS).

    (iv)  section 20(8H) of the Taxes Management Act 1970 as amended by section 255 of the Finance Act 1994 (case where disclosure of information "would prejudice the assessment or collection of tax".

    (v)  section 53(2)(b) of the Drug Trafficking Act 1994 (offence of disclosing information which "is likely to prejudice" an investigation).

  We do not know of any cases in which the phrase used in these Acts has been judicially considered.

48.   Can you compare it with the phrases indicating the degree of harm used in other legislation?

DATA PROTECTION ACT 1998

  Sections 29, 30 and 31 contain provisions which are in some ways comparable to those in the Bill.

  Section 29(1) provides an exemption from, inter alia, section 7 of the Act (right of access to personal data) in relation to data processed for certain purposes "to the extent to which application of [the provisions] to the data would be likely to prejudice any of the matters mentioned" in the subsection.

  Section 30(3) provides that the Secretary of State may by order exempt certain data from the subject information provisions if he considers that the application of those provisions "would be likely to prejudice the carrying out of social work".

  Section 31(1) provides an exemption from the subject information provisions in relation to data processed for purposes connected with regulatory functions to "the extent to which application of those provisions to the data would be likely to prejudice the proper discharge of those functions".

  These provisions are very similar to those in the Bill. They have essentially the same structure; the probability of application of the access provisions to certain information prejudicing certain interests.

OFFICIAL SECRETS ACT 1989

  A number of provisions provide that a "damaging disclosure" of information shall be an offence. What amounts to a damaging disclosure is defined by reference to the nature of the information disclosed. In relation to defence, for instance, a disclosure is damaging if, inter alia, it damages the capability of the armed forces, or leads to the loss of life or injury of members of those forces or serious damage to their equipment or installations or if it is of information which is likely to have any of those effects if disclosed (section 2(2)). Similar provisions exist in relation to international relations, security and intelligence services and crime and special investigation powers.

  Although the test is one of likelihood, as in the Bill, the level of harm required is more demanding than in the Bill. This more demanding requirement as to the level of harm is justified since the provisions create criminal offences.

LOCAL GOVERNMENT ACT 1972

  The Local Government Act 1972, Part V and Schedule 12A, contain provisions on access to certain information held by local authoritites. Schedule 12A contains a list of exempt information. Many of the exemptions are of a class nature. For instance, any action taken or to be taken in connection with the prevention, investigation or prosecution of crime is exempt (Part 1, paragraph 14). This is a wider exemption than in the Bill (the class exemption only applies to information which has at any time been held for the purposes of a particular investigation or proceeding).

  However, certain of the exemptions, although expressed as class exemptions, are qualified in such a way as to relate to the level of harm arising from disclosure. Any terms proposed or to be proposed by or to the authority in the course of negotiations for a contract for the acquisition of property or the supply of goods or services is exempt information (Part I, paragraph 9). However, Part II, paragraph 4 provides that information is only exempt "if and so long as disclosure to the public of the terms would prejudice the authority in those or any other negotiations concerning the property or goods or services". Part II, paragraph 5 contains a similar qualification in relation to the exemption for consultations relating to labour relations (which is contained in Part 1, paragraph 11).

  Where a harm test exists, the level of harm is comparable to those in the Bill. As to the likelihood of that harm arising, the Local Government Act requires that the disclosure would prejudice the protected matters rather than that it would be likely to. Superficially it may be that to this extent the Bill provides slighter wider latitude to rely on the exemptions. However, the difference between the provisions on this point is reduced considerably when one bears in mind that the phrase "would prejudice" is capable of covering a disclosure which would be likely to prejudice (ie, is capable of risking prejudice) where the existence of such a risk would in itself prejudice the interest to be protected.

BANK OF ENGLAND ACT 1998

  Section 13 of this Act establishes a Monetary Policy Committee of the Bank of England with responsiblity for formulating monetary policy. Section 14 provides that as soon as practicable after a meeting of the Committee, the Bank shall publish a statement as to whether it was decided that action should be taken and, if such a decision was made, what that action is. This does not apply to action by way of intervening in the financial markets. However, in relation to such action, the Bank should decide whether immediate publication of the decision to take such action "would be likely to impede or frustrate the achievement of the intervention's purpose" (section 11(2)). If the Bank concludes immediate publication would have this effect, it need not publish the decision. However, it remains under a duty to consider publication, and is under a duty to publish a statement as soon as practicable after it has decided that publication would not have the effect specified.

  This is comparable to the approach in the Bill in relation to economic interests (clause 24). The required likelihood of the harm arising is probability, as in the Bill. The level of harm is expressed as to "impede or frustrate" the purpose. This is similar to and no more demanding than the prejudice test in the Bill.

CLAUSE 22

49.   "(2) confidential information obtained from a state other than the UK": what does "the terms on which it was obtained require it to be held in confidence" mean? Does it mean that this is information which is covered by the law of confidence, or does it more simply mean information that is marked confidential? If the latter, how does this relate to the relaxation in the law of confidentiality in relation to public information? Where does the phrase come from?

  Subsection (2) is intended to cover confidential information passed to the United Kingdom from another State or an international organisation. It is not limited to information which is marked "confidential". Broadly speaking, it provides protection for information supplied to the United Kingdom which, if the information had been supplied within the United Kingdom, would have gained the benefit of the exemption in clause 32 (confidential information). However, clause 32 applies where disclosure of the information would constitute an actionable breach of confidence. A breach of confidence in relation to another State or an international organisation by the United Kingdom may not give rise to a cause of action in the United Kingdom. Therefore, separate provision is needed.

  There is no all-purpose definition of confidential information nor an exhaustive list of the situations in which a duty of confidence can arise. The courts have, however, developed certain general principles. For a fuller discussion of these, we refer to the response to the Committee's questions on clause 32.

  The law of confidentiality is not "relaxed" in the Bill. The Bill does not purport to affect the law of confidentiality. Where a duty of confidence arises, the authority is exempt from the obligation to disclose the information and to confirm or deny that it holds the information if to do so would breach the duty. This provision, and clause 32, achieve this. It is, however, the case that the United Kingdom law of confidence does include a public interest element. We would not expect such an element to be read into subsection (2). However, in relation to information which is exempt by virtue of this subsection, the public interest would be fully considered by an authority when exercising its discretion pursuant to clause 14.

  The wording is similar to that in section 3(6) of the Official Secrets Act 1989.

CLAUSE 25

50.   "Has at any time been held by the authority": is this intended to mean that papers relating to investigations or proceedings of the type referred to will never become available, except, perhaps, because they are released at the discretion of the authority under section 14 (for public interest reasons)?

  The wording provides that information, once held by the authority for the purposes specified in clause 25(1)(a)-(c) and 2(a) and (b), always falls within this class exemption, even if its continued retention is not related to these purposes. This class exemption lasts in perpetuity. However, there may be circumstances where there is an overriding public interest in the release of information obtained during an investigation. Whilst there would be no obligation on the part of the authority to release information under this clause, the authority would, nevertheless, have a duty to consider under clause 14 whether it should exercise any discretion it may have to disclose the information in the public interest.

51.   "any investigation": can you give example of investigations of the types listed in subsection (2)? Can you explain in each case why the information needs to be protected in this way?

  Clause 25(2)(a) covers a wide range of regulatory investigation and proceedings. It is considered essential to the integrity of specific investigations and proceedings to ensure that information does not have to be disclosed as of right. An authority holding information falling within this class would have to consider disclosing it, pursuant to clause 14, in the exercise of any discretion it may have to do so.

  Examples of investigations falling within this subsection include those into whether a company director should be disqualified, the misappropriation of client's money by a solicitor and whether a person is fit to be a trustee of an occupational pension scheme.

52.   What is covered by "improper conduct"? Does it cover the full range of informal inquiries which might be taken by an authority about one or more of its members?

  "Improper conduct" includes conduct which may amount to malpractice—or may simply fall short of applicable or relevant standards—but which may not in itself be unlawful.

  Inquiries are only covered by clause 25(2)(a) if they are conducted by virtue of statutory powers (or, more rarely, prerogative powers). It may often not be the case that informal inquiries by an authority into its own members (or staff) are conducted under statutory powers. If the inquiry is not conducted under statutory powers then information held for the purposes of the inquiry will not fall to be covered by clause 25(2)(a)(i).

53.   The Data Protection Act contains (s.31 (4)) a specific exemption for investigations by the various Ombudsman. Such protection appears not to be provided for under clause 25 of the draft Bill (which in other respects is similar to section 31 of the Data Protection Act). How it is intended to provide an exemption for Ombudsman investigations?

54.   Clause 25 (2)(a)(i) and (ii) differ from the provision in the Data Protection Act (s.31 (2)(a)) which is apparently intended to cover very broadly similar ground. The clause also does not contain the specific exemption given to the Director General of Fair Trading. Can you explain why the exemptions have been set up in so different ways?

  We consider that adequate protection is given through other exemptions, notably personal information. But if these regulators or Ombudsman consider that the protection given is not adequate (and we have no reason to believe that they do) we will consider any case made for expansion of clause 25. That said, the general criticism of this clause is that it is too wide already and that we should consider narrowing its scope.

55.   Why is it necessary to protect information on the cause of accidents when this may be available in litigation?

  The exemption in clause 25(2)(a)(iii) (information held for the purpose of ascertaining the cause of an accident) excludes the right of access to this class of information for the reason set out above. The position in relation to such information in the course of litigation and such information when there is no such litigation, is not comparable. In the context of litigation, disclosure is required in the interests of justice. Where there is no litigation this pressing interest does not exist. It should also be remembered that the disclosure in the context of litigation is limited. The information would be disclosed only to the parties and would be subject to the usual undertaking that it not be used for any purpose other than the proceedings in which it was disclosed.

56. (3)   Why is subsection (3) necessary? What information does it cover which would not be covered by subsections (1) or (2)?

  Subsection (3) is wider than subsections (1) and (2) in that the information covered need not relate to a specific investigation or proceeding.

CLAUSE 26

57.   Why is this clause required as well as clause 25? What does it cover which is not covered by clause 25?

  Clause 26 protects more than the conduct of investigations and proceedings. Information which has at no time been held for a particular investigation or proceeding (and thus is not exempt under clause 25) is nonetheless exempt if the disclosure would prejudice, for instance, the prevention or detection of crime. Thus, information relating to the criteria which the police apply when considering the possible installation of secret surveillance equipment in a suspect's home would not be within clause 25 but would be exempt under clause 26 if its disclosure would prejudice the prevention or detection of crime.

CLAUSE 27

58.   At present, trial judges or presiding judges may, at their own discretion, release information relating to court proceedings. This clause excludes all information relating to court proceedings, and does not require any public interest consideration of disclosure of that information. Do you expect this to result in no discretionary releases of such information, or do you expect judges still to be able to, and to make, such discretionary releases?

  This clause exempts as a class information contained in the specified records and does not require the authority to consider discretionary disclosure under clause 14. This exemption has no effect on the power of courts and tribunals to make information publicly available. In other words the courts will continue to be able to exercise any discretion they have to disclose information.

CLAUSE 28

59.   "if it relates to": this is not a harm test, but a class exemption. Do you expect it to be interpreted in a way which distinguishes (as the White Paper suggested) the facts and analysis behind policy, and the policy advice itself? If so, why does the distinction not appear on the face of the Bill?

  The exemption in this clause would cover factual material and analysis behind policy. Despite this, an authority is not precluded from disclosing such information; it is merely not obliged to do so. Such material may be disclosed by virtue of clause 14.

60.   "Operation of any Ministerial private office": what is this intended to cover which is not covered by the other provisions of this clause?

  There are many aspects of the operation of Ministerial offices which are not related to the formulation of policy. The purpose of this provision is to ensure that the disclosure of such information is at the discretion of the Minister, who is best placed to assess the effect of any disclosure.

61.   "Reasonable opinion of a qualified person": qualified person means in relation to government departments, a Minister; in relation to most other public authorities, the authority itself or a person authorised by the Minister. How do you expect "reasonable opinion" to be interpreted in this case? How may it be challenged? What are the chances of successfully challenging a "reasonable opinion"? Can you confirm that this provision is based on a similar provision in the New Zealand Freedom of Information Act? Can you explain why the other provisions of the relevant section in that Act were not also incorporated?

  We expect reasonable opinion to be interpreted in the judicial review sense; that is a decision such that a reasonable person, when properly considering the relevant matters, and ignoring irrelevant matters, could have reached. Any review by the Commissioner of such a decision would be similar to that conducted by a court hearing a judicial review. It is difficult to comment on "the chance of success" in the abstract, but the position must be comparable to that on judicial review.

  Clause 28 is not based on any provision of the New Zealand Official Information Act 1982. However, section 9 of that Act has influenced certain aspects of subsection (3).

  Any comparison of clause 28(3) and section 9 must consider them in the context of the Bill or Act as a whole. Looking at the Bill as a whole we believe that adequate safeguards exist in relation to this exemption.

  First, the Commissoner can require disclosure if he finds that the authority's decision that this exemption applies is one which could not have reasonably have been made.

  Secondly, the public interest in access to information must be taken into account by an authority holding information which is exempt by virtue of this provision when exercising any discretion it has to disclose information under clause 14. The Commissoner can review the decision by the authority not todisclose information. Although the Commissoner cannot require disclosure, he can direct the authority to reconsider bearing in mind particular matters.

CLAUSE 31

62.   Included among the conditions which determine whether third party requests for personal information are exempt is the question of whether disclosure would contravene section 10 of the Data Protection Act. What would constitute a contravention of section 10 of the Data Protection Act?

If information is exempt from disclosure under clause 31(1) and is not disclosable under the Data Protetion Act, is it possible for an authority to disclose it under the discretionary disclosure provision in clause 14?

  Section 10 of the Data Protection Act prohibits the processing of data (including disclosure) where the processing, or processing for a particular purpose is causing, or is likely to cause substantial damage or substantial distress to the subject and that damage of distress would be unwarranted.

  A clause 14 disclosure would be possible provided that the Data Protection Act did not prohibit the disclosure (as opposed simply to not require it).

CLAUSE 32

63.   "Would constitute a breach of confidence": in what circumstances would disclosure constitute a breach of confidence?

  Whether a disclosure constitutes a breach of confidence would be determined by the courts applying the ordinary common law on the duty of confidence. There is no all-purpose definition of confidential information nor an exhaustive list of the situations in which a duty of confidence can arise. The courts have, however, developed certain general principles.

  A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstanaces that he should be precluded from disclosing the information to others. The scope of this duty is limited by three principles. Firstly, information cannot be confidential if it has entered the public domain. Secondly, useless or trivial information cannot give rise to the duty. Thirdly, the public interest may in certain circumstances negate the duty.

  The essence of a breach of a duty of confidence is that the confident misuses, or threatens to misuse, the confidential information. Generally speaking an unauthorised dislosure to another will constitute misuse. However, there is no definitive formulation of what constitutes misuse. It must be assessed in the light of the scope of the duty in each case.

CLAUSE 33

64.   "Legal professonal privilege": can you provide information on in what circumstances legal professional privilege can be obtained for information which is likely to be requested? Why should public bodies be protected in the same way as private individuals?

  Legal professional privilege protects certain classes of document from production and inspection in litigation. Where it exists and is not waived, legal professional privilege is paramount and absolute and not subject to any balancing exercise of weighing competing public interests. Legal professional privilege is a fundamental right and one which is central to the administration of justice. It is much more than a rule of evidence. The essence of the privilege is that a person must be able to consult his lawyer in absolute confidence, in the knowledge that what he tells his lawyer in confidence will never be revealed without his consent.

  Documents which are protected by legal professional privilege fall into two classes, (a) those that are privileged whether or not litigation was contemplated or pending and (b) those that are only privileged if litigation was contemplated or pending when they were made or came into existence. The first class includes communications between a lawyer and his client, if the communication is confidential, to or from the lawyer in his professional capacity and for the purpose of obtaining or imparting legal advice to the client. The second class includes communications between a lawyer and a non-professional agent or third party which come into existence after litigation is contemplated or commenced and made with a view to such litigation and communications between a client and a non-professional agent or third party if they came into existence only for the purpose of obtaining legal advice in existing or anticipated litigation.

  Under the law as it stands, legal professional privilege can be relied upon by a public authority in litigation. We believe this is right. The Bill does not seek to change the existing law on legal professional privilege. Information requested pursuant to the FOI Bill could, in principle, fall into either of the above classes of privileged documents. If information is privileged it is exempt. It would of course be open to a public authority to waive its privilege and disclose the information.

CLAUSE 34

65.   "If it constitutes a trade secret": can you provide information on the definition of a trade secret?

  A number of modern statutes contain provisions inhibiting the unauthorised disclosure of trade secrets (undefined); we are not aware of any decided authority on the construction of the expression in such provisions, nor that they are regarded as causing difficulty. On some occasions these inhibitions found criminal liablity (for example, section 325 of the Town and Country Planning Act 1990), and on other occasions, as in the present Bill, they define what are essentially civil obligations (for example, section 8(5) of the Data Protection Act 1998).

  In an Australian case on their 1982 Freedom of Information Act, Searle Australia Property Ltd v Public Interest Advocacy Centre (1992) 108 ALR 163, the Federal Court held that, in the freedom of information context, "trade secrets" was an ordinary term of the English language and primarily involved a question of fact. The Court cited the Oxford English Dictionary definition of "a device or technique used in a particular trade or . . . occupation and giving an advantage because it is not generally known". It held that to constitute a trade secret the information need not be of a technical nature, but that the secret must be used or useable in the trade; a trade secret is an asset of the trade.

  The expression "trade secret" has been the subject of judicial interpretation in the UK in other contexts. One of the most well-known UK examples is the judgement of the Court of Appeal in an employment law context in Faccenda Chicken Ltd. v Fowler [1987] Ch 117, where it was said that, among the matters to which attention must be paid in deciding whether or not information constitutes a trade secret is—

    "The nature of the information itself. . . It is clearly impossible to provide a list of matters which will qualify as trade secrets or their equivalent. Secret processes of manufacture provide obvious examples, but innumerable other pieces of information are capable of being trade secrets . . . the fact that the circulation of certain information is restricted to a limited number of individuals may throw light on the status of the information. . ."

  In another prominent UK case on the definition of a "trade secret", Lansing Linde Ltd. v Kerr [1991] 1 WLR 251, Staughton LJ said—

    "[Counsel] suggested that a trade secret is information which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret. I would add first, that it must be information used in the trade or business, and secondly that the owner must limit the dissemination of it or at least not encourage or permit widespread publication. . . . It can thus include not only secret formulae for the manufacture of products but also, in an appropriate case, the names of customers and the goods which they buy."

66.   "Prejudice the commercial interests of any person": why is it necessary to introduce such a wide protection for commercial interests?

  The Bill will have wide coverage, extending to organisations which are themselves engaged in commercial operations. Clause 34, therefore, is designed to protect the commercial interests not only of private third parties information about whom may be held by authorities covered by the Bill, but also of those authorities themselves and indeed of any person who may be affected by the disclosure of the information. It is in the public interest that public authorities carrying out commercial operations are not unduly disadvantaged in comparison with their private sector competitors. In addition, it is in the public interest that the ability of public authorities to obtain value for money when entering into commercial transactions is not unduly compromised.

67.   Is there a difference between "trade secrets" and "commercially confidential"? Or are they assumed to mean the same thing?

  Clause 34(1) provides automatic protection from disclosure for trade secrets, whether they constitute the authority's own trade secrets or those of a third party.

  Clause 34(2) protects a much wider, indeed unlimited, range of information, subject to establishing on a case by case basis that the disclosure of the information would result in harm being caused to the commerical interests of any person—including the public authority itself.

  (The Bill does not itself use the term "commerically confidential". Where information, including commercial information, has been passed to an authority from a third party in circumstances attracting a legal duty of confidence, then that information will be exempt under clause 32.)

  Clause 34(2) is designed to protect information which may be as commercially valuable as a trade secret, by virtue of its not being generally known, but does not in fact constitute a trade secret. Commercially valuable information of this kind could, for example, include the results of trials or research, or strategic business plans. Other information may not have any intrinsic commercial value, but nevertheless be market sensitive, such that its disclosure may disadvantage the individual or organisation to whom it relates, the authority itself, or indeed anyone else, in the conduct of their commercial affairs. For example, the information might be that an organisation intends to do something within a particular time, say take out advertisements or move premises. In these circumstances, if the information is publicly available, the organisation's commerical interests would be prejudiced and therefore such information would be exempt under clause 34(2).

CLAUSE 35

68.   "Is incompatible with any Community obligation": what obligations are likely to be relevant here? What if they are less liberal than domestic provisions?

  "Community obligation" is defined by the Interpretation Act 1978 by reference to Schedule 1, Part II, to the European Communities Act 1972. The term covers obligations imposed on the United Kingdom by virtue of its membership of the European Community and includes obligations contained in Treaties, Regulations and Directives, decisions of the European Court of Justice and binding decisions of the Commission. In particular, it is intended to cover those obligations which are not implemented in the United Kingdom by way of enactments, eg, obligations contained in EC Regulations.

  If a Community obligation prohibits the disclosure of information the disclosure by the authority of that information would be unlawful, even though, but for clause 35, it would not be exempt information under the Bill. There could be no right of access under clause 8 to such information, nor could the authority disclose the information under clause 14. Domestic law is not capable of overriding Community obligations; this provision simply recognises that fact.

  An example will be the Commission regulation that will in due course be adopted under article 10 of Regulation (EC) No. 258/97 of the European Parliament and of the Council of 27 January 1997 concerning novel foods and novel food ingredients (OJ No. L 43, 14/2/97, p.1). Article 10 requires the Commission to adopt detailed rules for the protection of the information provided by applicants for authority to market novel foods, and the rules will constitute a directly applicable Community obligation.

CLAUSE 36

69.   "Information to which an order made by the Secretary of State under this section applies": there is no indication as to what type of information may be made subject to such orders. Would such orders be normally directed at specific pieces of information? Could they be used to exempt further classes of information?

  It is intended that an order made under this section may specify either particular pieces of information, or a complete class of information.

CLAUSE 37

70.   Why is this provision necessary?

  Disclosure of some information may not, of itself, prejudice one of the protected interests but when taken together with other information it may do. Where this would be the case this clause provides that disclosure of information shall be taken to prejudice the particular interest. This provision is necessary to avoid any risk arising as a result of continuing the information.

71.   "If any other information . . . became available at the same time or subsequently": will the authority be obliged to state this reason when giving reasons (under clause 15) to the applicant for the refusal of the information? Or will they simply give the relevant exemption?

  An authority would not be obliged to refer to clause 37 when giving reasons for refusing a request pursuant to clause 15. The authority would have to refer to the substantive exemption or exemptions on which it was relying.

72.  Can you refer to any similar provisions in any other Freedom of Information legislation?

  Not as such, though the way exemptions work under legislation may provide a similar result.

CLAUSE 38

73.   "Code of Practice": will this be published in draft form?

  The Secretary of State's Code of Practice will be published in draft.

74.   Apart from the issuing of a practice recommendation under clause 41, what will be the consequence for any public authority of failure to follow the provisions of the Code of Practice? Could the Secretary of State intervene? Or could the Commissioner be able to seek judicial review:

  If an authority fails to follow the provisions of the Code of Practice the Commissioner will, in addition to issuing a practice recommendation, be able to make adverse comment on the authority's lack of adherence to the Code in any report to Parliament under the provisions of clause 42. It would also be open to the Commissioner to seek judicial review in an appropriate case.

  The Secretary of State would have no power to intervene.

75.   "Consultation with persons to whom the information requested relates or persons whose interests are likely to be affected by the diclosure of information": there is no system of appeal for third parties against a decision to disclose information. Is this the only opportunity someone whose interests will be affected by a decision to disclose has to object against it?

  Where third party rights are affected by a disclosure of information there will be existing remedies in law and the Bill does not take these away.

  Where the Bill does not grant a right of access to information and disclosure of that information pursuant to clause 14 would seriously affect third party interests, an authority would be required to take those interests into account before disclosing the information.

  The Code of Practice will address further measures relating to the consultation of third parties.

76.   "Shall consult the Commissioner": has a decision been taken against consulting more widely on the Code of Practice?

  Clause 38 places a statutory obligation on the Secretary of State to consult the Commissioner before issuing or revising any Code. It is right that this should be an explicit obligation since the Commissioner has the statutory function of monitoring compliance with the Code. However, although the Bill only requires consultation with the Commissioner we expect the Secretary of State, in accordance with good administrative practice, to consult more widely than this. We expect him to consult other persons who have a legitimate and direct interest in the Code.

77.   The Home Office have said in previous answers that although there is no provision for third party appeals in the draft Bill, where third party rights are affected by disclosure there are existing remedies in law and the Bill does not take these away. The Committee has been referred to US experience, in which the Act was amended to provide "reverse FOIA" after a large number of legal challenges concerning the rights of third parties. Is it not preferable to provide a mechanism in the Bill for appeals by third parties against a disclosure decision?

  We have not added to, or taken away from, third party rights in the Bill. Where there is an obligation on a public authority to consult before disclosure, that obligation remains. This means that where, for example, personal information or confidential information is an issue, consultation with the third party in question would have to take place before disclosure.

  But we do not see how a statutory duty to consult anyone who might be affected by a disclosure, where there are no existing legal obligations to do so, could work. Public authorities must be given the discretion to exercise their judgement as to whether and when to consult—for example to determine whether a disclosure would prejudice the commercial interests of a third party. If they are not given such discretion a great deal of time and resources will be wasted chasing marginal interests. All this points to a Code of Practice type enforcement, which is what is proposed in the Bill. Any statutory measure which gave sufficient discretion to public authority would, in our view, be unenforceable in practice except through guidance.

  We also consider that it would not be right, in these circumstances, to allow third parties to appeal through the Commissioner against disclosure. Existing legal remedies remain (injunctions—or claims for damage). But to give third parties a right to use the services of the Commissioner would require a significant transfer of resources from the private to the public sector for the enforcement of private rights. Giving third parties a "no risk" avenue of appeal would encourage frivolous claims.

CLAUSE 39

78.   "Code of Practice": is there existing guidance for public authorities subject to the Public Records Acts? Will this Code replace it?

  The Public Record Office produces a series of records management standards and schedules as guidance for those bodies subject to the Public Records Acts. This will be replaced by the Code of Practice, although there may be a need for some supplementary guidance for public records bodies which will go beyond the Code in terms of detail.

79.   "Any office or body": which bodies are covered by this provision ((6)(b))?

  Clause 39(6)(b) is intended to cover any bodies currently covered by the Public Records Act 1958, but not designated as a public authority under the FOI Act. This includes the security and intelligence agencies, possibly some non-departmental public bodies not designated by order under the Bill and courts and tribunals.

80.   The Code will presumably cover many authorities which will not previously have been subject to the obligations in the Public Records Acts. The Bill at present does not impose on these duties to maintain records. It is intended that authorities not presently covered by the Public Records Acts will be brought under it?

  No, bodies will not be brought under the Public Records Acts, and will not be placed under a duty to maintain records. However the Code will set out good practice in relation to record keeping and management.

CLAUSE 40

81.   "May with the consent of any public authority, assess whether that authority is following good practice": what is this provision intended to achieve?

  It is envisaged that some authorities may, in implementing FOI, seek advice on whether they are following good practice on FOI, including whether they are complying with the provisions of the Bill and following the guidance in Codes of Practice and advice on good practice issued by the Comissioner. As the Commissioner is responsible for enforcement and has a duty to issue guidance on good practice, it is appropriate that he should be able to be pro-active in advising authorities on the extent to which they already have satisfactory arrangements in place and what improvements could be made. This provision is necessary to allow the Commissioner to do this. The Commissioner will be able to make assessments with the agreement of the authority regardless of the position on individual requests for information and in cases where enforcement action is not required. In the absence of a need for enforcement action, it is not considered appropriate for the Commissioner to be able to make these assessments without the agreement of the authority concerned.

 CLAUSE 41

82.   "a "practice recommendation"": what will happen if an authority fails to act, or to act adequately, on a practice recommendation?

  No formal sanction is provided in the Bill. The Commissioner could seek judicial revew in an appropriate case. The Commissioner could of course comment on the failure to comply with a practice recommendation in his report to Parliament.

CLAUSE 42

83.   "A general report/such other reports": is it intended that these reports will contain details of practice recommendations issued by the Commissioner? If the Commissioner is to have no powers to enforce practice recommendations will there be a Committee which will (as with the Ombudsman) give a focus for the Commissioner's work in Parliament?

  As the Commissioner will be independent of Ministers the content of the reports will be for him. It is open to the Commissioner to include details of any practice recommendations issued and the extent to which they have been followed.

  It is for Parliament to decide if there should be a committee in Parliament to give a focus to the Commissioner's work.

CLAUSE 43

84.   "Dealt with in accordance with the requirements of Part I": will this exclude the Commissioner taking into consideration the Code of Practice when he or she makes a decision?

  The Commissioner would be able to take into account any aspect of the Code of Practice which is relevant to whether the authority has complied with Part I of the Bill. Ultimately, however, when enforcement action is being considered, the test will be whether the authority has fulfilled the legal requirements of Part I of the Bill.

85.   "Specified period"; the period for compliance with a decision notice cannot be shorter than the period within which an appeal can be brought. What is the period within which an appeal can be brought?

  The period within which an appeal can be brought will be specified in rules of procedure for the Tribunal as provided for under the provisions of the Data Protection Act 1998, Schedule 6, paragraph 7, as amended by the Bill. It is likely that it will be 28 days (which would be in line with plans for the rules for the Data Protection Tribunal).

86.   "May not require the public authority to disclose particular information, but may . . .": the Information Commissioner cannot force the authority to take a particular decision but can force it to take a decision and take it having regard to specific matters. What proof would be required to show to the court (under clause 46) that the authority had failed to comply with his or her notice, by failing to "have regard" to the matter specified?

  Whether or not an authority has failed to comply with a notice requiring certain matters to be taken into account is a matter of evidence for the court. The standard and level of proof required would be that normally required by the courts. The courts are familiar with the evidential matters which are likely to arise here from judicial review.

CLAUSE 44

87.   "Expose the authority to proceedings for that offence": Why is it necessary to include this provision? Will it not unjustifiably conceal wrongdoing by public authorities? Why should the authority have a privilege against self-incrimination as well as individuals? As the Commissioner appears to have no powers to pass on the information obtained to a prosecuting authority or to prosecute apart from under the Act itself, why is this provision required?

  In the Bill, the information notice powers of the Commissioner are intended to be equivalent to those available under section 43 of the Data Protection Act 1998. The privilege against self-incrimination in the 1998 Act was designed to have due regard to the rights of private data controllers under the European Convention on Human Rights not to be required to produce incriminating information under penalty, but made no distinction in this respect between public and private data controllers. As the question acknowledges, the Commissioner had no general function to pursue criminal offences, but information in the Commissioner's hands obtained under compulsory powers could in turn be obtained from him by other investigative authorities, exposing the data controller or indeed any authority to criminal sanction. As a matter of policy, it is intended to maintain the 1998 Act's position as regards "public authorities" as defined by the Bill when the information notice power is exercised under the Bill; it is of course possible that some public authorities for the purposes of the Bill will be private companies.

  The provision does not apply to a public authority which is part of the Crown; since the Crown cannot be made subject to criminal prosecution, the issue of self incrimination does not arise. And it will only be capable of being relied on by a public authority when it, rather than any of its employees or office holders, is exposed to the risk of prosecution.

CLAUSE 44(7)

Note by Home Office following the meeting on 22 June

  87A.  There seemed to be some suggestion that this clause was being confused with an exemption from the right of access under clause 8. It is, in fact, a restriction on the Commissioner's power to issue an enforcement order to look behind a claim that an exemption applies. The clause has the effect that an authority (not employees or office holders) to criminal prosecution. It cannot apply to a Crown body (such as a Government Department) as the Crown cannot be prosecuted for a criminal offence.

CLAUSE 45

88.   "Specify matters to which the public authority must have regard": will the Commissioner be able to indicate under this provision what weight any of these matters should carry, or indicate what he or she believes the outcome of the authority's consideration should be? In acting on the enforcement notice in this case, what will the authority be required to do? Will it be required to explain how it has considered the various matters specified, or simply to say that it has considered them?

  The Commissioner will be able to indicate what weight should be given to any of the matters specified but not what he believes the outcome of the decision should be. The authority will be required to reach a decision and take the matters specified in the enforcement notice into account when doing so. The Commissioner will be able to require the authority to explain how it has considered the matters specified and, if necessary, issue an information notice to obtain this information.

CLAUSE 46

89.   "A contempt of court": what will be the consequences for any public authority of a finding that it had committed a contempt of court?

  The punishment for contempt of court in England and Wales is imprisonment for a maximum of two years or an unlimited fine (Contempt of Court Act 1981, section 14).

90.   If an authority is taken to have failed to comply with a decision notice, information notice or enforcement notice it may be taken to have committed a contempt of court. What are the consequences of having committed a contempt of court for a government department?

  The legal consequence of a contempt of court on a public authority is the imposition of a civil law fine. However, it is a convention that public authorities obey court orders and the Commissioner's decisions will have the status of an order of the court. We therefore do not expect contempt proceedings to take place—the provision is there to give the Commissioner's notices the appropriate status.

91.   There are other possible ways of enforcing such notices, for example, by means of an injunction. Why is it preferable to enforce the notices via the contempt of court provision, rather than by means of an injunction?

  We have not used injunctions as the purpose of an injunction is to give mandatory effect to a generally worded obligation.The Commissioner's notices will already be clearly worded in directional terms. And injunctions get their force from the fact that a breach would be a contempt of court. We therefore consider that an injunction to be an unnecessary step in the process.

CLAUSE 47 AND SCHEDULE 3

92.   Are the powers given to the Commissioner under Schedule 3 similar to those given to any other investigating authorities? If so, which ones?

  Powers identical to those given to the Commissioner in Schedule 3 are given to the Data Protection Commissioner in Schedule 9 to the Data Protection Act 1998.

  Comparable powers are given to officers of the Commissioners of Inland Revenue in relation to serious fraud offences by section 20C of the Taxes Management Act 1970 and to constables by section 448 of the Companies Act 1985.

93.   "Seven days' notice": why is it necessary to give this period of notice, particularly in a case where it is suspected that an offence under section 66 is being committed?

  The Commissioner is required to give a period of notice to the occupier of premises in order to facilitate consensual access to the premises. This requirement does not apply if the judge is satisfied that the case is one of urgency or that compliance would defeat the object of the entry (Schedule 3, paragraph 2(2)).

CLAUSE 48

94.   Does this clause also indemnify authorities in cases where they have wrongly or negligently disclosed information, which has resulted in financial loss or other?

  No.

CLAUSE 49

95.   The Bill does not give the Commissioner powers to assist a complainant to appeal. Will he or she be able to under the provisions of the Bill?

  In the case of a decision notice, the complainant would be appealing against a decision of the Commissioner. It is thus inappropriate for the Commissioner to have any role in assisting the complainant in his appeal.

  As to any other appeal, rules of procedure could provide for joinder of person or parties to an appeal. However, since the Commissioner will always be a party to such appeals, assistance would, again be inappropriate.

96.   Can you provide evidence of the time taken for cases to be heard, and the time taken to hear cases in other similar tribunals (the Data Protection Tribunal, for instance)?

  No statistics are available on how long it takes for a hearing to be held by the Data Protection Tribunal once an appeal has been lodged, but the lead in time would depend on the circumstances of an individual case. As to the length of the sittings, the shortest sitting has been two days and the longest nine days. Sittings on average are between 3-5 days.

CLAUSE 52

97.   "Applying the principles applied by the Court on an application for a judicial review": can you explain the principles involved?

  This formula has now been used in a number of contexts to describe the jurisdiction of tribunals concerned with the review of decisions relating to national security, including the Security Service Act 1989 (Schedule 1, paragraph 4), the Intelligence Services Act 1994 (Schedule 1, paragraph 3) and the Data Protection Act 1998 (section 28(5)).

  The jurisdiction of the Tribunal to quash a national security certificate is required by this provision to be exercised using the same approach as a court would use on an application for judicial review. The principles to be applied in such circumstances are the subject of a very substantial body of case law and learning, but as a basic and general guide, the Tribunal could quash a national security certificate on this basis if it found that the Minister had not exercised his power to issue a certificate reasonably. The level of unreasonableness or irrationality which needs to be shown is often referred to as "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223 (CA)), and will be made out if no reasonable Minister, properly directing himself, taking into account all relevant considerations and no irrelevant ones, and having proper regard to the purpose for which he has been given the power in question, could have reached the decision to issue the certificate.

CLAUSE 5598.   Can you provide the current guidance on the release of records held in the Public Record Office, or held by anyone else (for example a local authority record office)?

  The current guidance on the release of records held in the Public Record Office is contained in Annex C to the 1993 White Paper Open Government and to a lesser extent in Chapter 9 of the same document. It is not possible to provide current guidance on the release of records held elsewhere—for instance, each local authority will have its own guidance in this area.

99.   "Cannot be exempt information by virtue of section 23, 27, 28, 33 or 34": this means that the information subject to these exemptions cannot be withheld after 30 years. Why is it necessary to preserve the other exemptions for a longer period?

  Information covered by the other exemptions not mentioned in this clause is such that its sensitivity may continue past the thirty year point, and it may be necessary to withhold the records beyond this point. It is therefore necessary to continue the exemptions in order that they may still protect such information. This largely preserves the current position under the Public Records Act 1958 on withholding information contained in records over 30 years old.

100.   The exemptions referred to in clauses 18, 19, 22, 24, 25, 30, 31, 32, 35 and 36 are not mentioned in this part of the Bill. Does this mean it is intended that they will continue in effect after 30 years with no date attached to when the exemption lapses?

  Yes, subject to two points. Firstly, clause 56(2) has the effect that historical records of or relating to the security and intelligence agencies held in the Public Record Office are subject to clause 14. Secondly, clause 36 provides that an order providing for a new exemption may make provision in relation to historical records.

CLAUSE 57

101.   "The authority shall consult the Lord Chancellor": how is it expected that such cases will be dealt with? Will this continue to be a function of the Advisory Council on Public Records? The White Paper proposed to give the Advisory Council the statutory support of the Public Record Office. Is this still the intention?

  The mechanisms of this process, and of the respective roles of the Lord Chancellor, the Public Record Office and the Advisory Council on Public Records, are still under discussion. It is intended that work will be completed in this area over the summer.

CLAUSE 62

102.   The Data Protection Registrar believes that, rather than the system set up in clause 62 it would be simpler to apply the 1998 Act in its entirety to the extra information brought within the scope of the 1998 Act, or at least to apply it to all the information brought under that Act except for the unstructured personal information. Can you explain why this system is necessary?

  The draft Freedom of Information Bill is intended to extend the right of access to information. Extending the whole Data Protection regime to the additional range of personal information disclosable under the provisions of the draft Bill would be a considerable extension of the Data Protection regime and is not necesary to give access to that information. Parliament decided, only last year, to follow the approach of the European Directive and not to impose such burdens on data controllers as the benefits would be disproprortionate to the costs. The Government believes that this principle still holds. In particular the scope of the Bill would restrict such an extension to public authorities within the meaning of the draft Bill, thus creating a two tier Data Protection regime; we see no advantage in such an outcome.

CLAUSE 72

103.   Most of the Act will come into force five years after it is passed, unless it has been brought into force earlier by an order. Is it intended that the Act will be phased in? And if so, in what sequence, and with what timescale.

  Ministers have yet to take a firm decision on an implementation plan, though the expectation is that the Act will be phased in by organisations. There will inevitably be a period after Royal Assent which will be needed to set up the Commissioner's office, (recruit and train staff etc). We expect that central government and NDPBs currently subject to the Code of Practice will be brought in first then a rolling programme covering the authorities.

  It is not correct to say that most of the Act will come into force five years after Royal Assent. That is just a fall back to ensure that anything not brought in earlier does come into force at that time. We estimate that three years is the most likely period by which all authorities will fall within the scope of the Act.

104.   If the Act is phased in, will it be running in parallel with the Code of Practice on Access to Government Information?

  The Code will remain in place until all authorities covered by it are subject to the Act.

 INFORMATION COMMISSIONER AND THE OMBUDSMAN

105.   The Data Protection Registrar has argued that the Information Commissioner ought to be given formal powers to co-operate with the Parliamentary Ombudsman. Without a provision to this effect it could involve a breach of privacy, and of the Parliamentary Commissioner Act 1967. Do you intend to so provide?

  If a provision is necessary in the Bill to allow co-operation, it will be provided.

SCHEDULE 1

106.   The White Paper listed Local Public Spending Bodies, for example Registered Social Landlords and Training and Enterprise Councils, as covered by the Bill. Though RSLs are listed in Schedule 1, TECs are not. Will Schedule 1 cover TECs?

  Registered Social Landlords are not listed in Schedule 1. They are capable of being designated by order under clause 2(1)(b)(i).

  Training and Enterprise Councils are capable of being brought within the scope of the Bill by order under clause 2(1)(b)(ii).

ACCESS TO THIRD PARTY INFORMATION

107.   You have said that the Data Protection Registrar's proposal to increase access to third party information is inconsistent with the Data Protection Directive. Can you explain how? Is it not possible to diverge from the precise terms of the Directive?

  The Registrar's proposal is based on a premise that there is a difference between "public" and "private" personal data. This distinction is not set out in the Directive. The terms of the Directive are, to a certain extent, open to interpretation and we believe that it may be possible to develop some guidelines which take account of the Registrar's intentions, but are clearly consistent with the Directive. But we need to discuss this in some depth with the Registrar.

  The Directive sets out minimum standards of protection for Data, and it is not possible to provide less protection. As noted above, there is probably room for some interpretation of the Directive (and of the Data Protection Act 1998), but we cannot base legislation on anything other than a firm understanding that what we are doing is consistent with our international legal obligations.

 PART VI—PUBLIC RECORDS

Note by Home Office following the meeting on 6 July

  108.  I think there was some misunderstanding on one or two points in this area.

  It is current policy that the exemption for communciations with the Royal Household should in fact be disapplied at 30 years. The Bill does not currently achieve this. This is an oversight which will be put right in the next print of the Bill.

  Where a request for information contained in a "historical record" is made to any authority, including the Public Record Office, it is for the authority alone to determine whether or not it is exempt. If it is not exempt, it must be disclosed.

  If information contained in a historical record is exempt, then discretionary disclosure under clause 14 is an issue. If the record is held by the PRO, it must consult with the originating authority before taking a discretionary decision to disclose. If it is held by any other authority, it must consult the Lord Chancellor before taking a discretionary decision not to disclose. This closely mirrors the existing system as regards discretionary disclosure.

DISCLOSURE UNDER CLAUSE 8 OR CLAUSE 14 OF INFORMATION SET OUT IN PARAGRAPH 5

  109.  The Home Secretary agreed to provide a note as to whether the information set out in paragraph 5 of the Consultation Document would have been disclosed under clause 8 or clause 14 of the draft Bill.

  It is difficult to be precise as the Bill's provisions work on a case-by-case basis and in many cases where disclosure of the whole document would not be possible under clause 8, a lot of the information would be and there would be an expectation that as much information as possible would be provided. That said, I would expect that items i, ii, iii, and xiii would, to a greater or lesser extent fall within the scope of the exemption in clause 28 and therefore disclosure would be via clause 14. Items ix and x may fall within the exemption in clause 21, though we consider that the information actually disclosed probably does not and would therefore fall to be disclosed under clause 8. Items iv, v, vi, vii, xi, xiii and xiv, would, we think, fall for disclosure under clause 8, though there may be a case for the application of exemptions in some circumstances for information of this kind—for example, with regard to item vii, if evidence had been submitted in confidence it may be withheld, or perhaps disclosed anonymously.

  You also asked whether this kind of information would be disclosed under the existing Code of Practice. Where I have indicated that disclosures under the Bill would be through clause 14, then we would expect an exemption under the Code's provisions to apply. But, of course, in all these cases the information has been made available, at the discretion of the public authority in question. So there would be no question of using a Code exemption to withhold this information.

 110.  FREEDOM OF INFORMATION REGIME IN IRELAND

Note by the Home Office following informal meeting with Martin Cullen TD

  I thought I should write just to say that when considering the experience in Ireland, there are three factors which should be taken into account:

    i.  the Irish legislation is non retrospective for non-personal information. All information disclosed therefore has been prepared in the full knowledge that it could be disclosed. By contrast the draft UK Bill is fully retrospective;

    ii.  the police service in Ireland is not covered by the legislation. In effect, therefore, there is a very large class exemption relating to all information held by the police;

    iii.  about 80 per cent of FOI requests in Ireland are for personal information. In the UK this is covered by the Data Protection Act 1984, soon to be replaced by the 1998 Act. This is a common feature of overseas FOI legislation—they deal with personal information. It makes international comparisons more difficult. In particular, issues such as refusal rates are difficult to compare. In the UK almost all requests for personal information are met—this appears to be the case elsewhere. Thus apparently low refusal rates—I believe Robert Hazell said about 5 per cent or less in Australia— will in practice translate into much higher refusal rates if applied only to non-personal information.

STATUTORY BARS ON DISCLOSURE

Note by Home Office on progress in reviewing Statutory Bars on Disclosure (19 July)

  The Home Office provided the following interim list of 29 bars on disclosure for repeal or amendment and 26 areas where existing bars on disclosure are requirements of international legal obligations and must therefore remain. They said that the review is ongoing and that there are likely to be additional bars for repeal or amendments as the review continues.

STATUTORY BARS PROPOSED FOR REPEAL OR AMENDMENT

  Airports Act 1986, section 74

  Civil Aviation Act 1982, section 23

  Radioactive Substances Act 1993, sections 25, 34 and 39

  Railways Act 1993, section 145

  Rivers (Prevention of Pollution) Act 1961, section 12

  Water Resources Act 1991, sections 204 and 205

  National Health Service (General Medical Services) Regulations 1992 Schedule 2(50) (repeal in part)

  Civil Defence Act 1948, section 4

  Factories Act 1961, section 154

  Offices Shops and Railway Premises Act 1963, section 59

  Offshore Installations (Inspectors and Casualties) Regulations 1973 (SI 1973/1842) regulations 6 and 7

  Courts and Legal Services Act 1990, section 49

  Cereals Marketing Act 1965, section 17

  Coastal Protection Act 1949, section 25

  Fisheries Act 1981, section 12

  Sea Fish Industry Act 1970, section 14

  Births and Deaths Registration (NI) Order 1976, article 17

  Census (NI) Act 1969, section 6

  Electricity (NI) Order 1992, articles 59 and 61

  Fisheries Act (NI) 1966, section 18

  Gas (NI) Order 1996, article 44

  Industrial Training (NI) Order 1984, section 28

  Marketing of Eggs (NI) Act 1957, section 16

  Marketing of Potatoes (NI) Act 1964, section 10

  Minerals (Miscellaneous Provisions) (NI) Act 1959, section 4

  Child Support Departure Direction and Consequential Amendments (NI) Regulations 1996, regulation 8(2)(a)

  Social Security (Adjudication) (NI) Regulations 1995, regulation 8

  Social Security (Recovery of Benefits) (Appeals) (NI) Regulations 1997, regulation 8

  Health and Safety at Work Act, section 28

STATUTORY BARS IMPLEMENTING INTERNATIONAL OBLIGATIONS

  Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996—International obligation under the Chicago Convention

  Merchant Shipping Act 1995, section 174—

relates to protection of information obtained in implementation of Convention which UK is party to namely the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1992

  Merchant Shipping (Liner Conferences) Act 1982—

relates to protection of information obtained in implementation of Convention which UK is party to namely the Convention on a Code of Conduct of Liner Conferences.

  Active Implantable Medical Devices Regulations (SI 1993/3146)—

transposes European directive containing general restrictions on disclosure of information (article 15)

  Medical Devices Regulations (SI 1994/3017)—

transposes European directive containing general restrictions on disclosure of information (article 20)

  Telecommunications Act 1984, section 101 (as amended by the Competition and Services Utilities Act 1992)—

implements article 20 of the EC Licensing Directive (97/13/EC)

  Alcoholometers and Alcohol Hydrometers (EEC Requirements) Regulations 1977 (SI 1977/1753), regulation 13

  Calibration of Tanks of Vessels (EEC Requirements) Regulations 1975 (SI 1975/2125), regulation 9

  Electrically, Hydraulically and Oil-Electrically Operated Lifts (Components) (EEC Requirements) Regulations 1991 (SI 1991/2748), regulation 3

  Measuring Container Bottles (EEC Requirements) Regulations 1977 (SI 1977/932), regulation 8

  Measuring Instruments (EEC Requirements) Regulations 1988 (SI 1988/186), regulation 26

  Non-automatic Weighing Instruments (EEC Requirements) Regulations 1995 (SI 1995/1907), regulation 38

  Chemical Weapons Act 1996, section 32—

includes international obligations arising from the Chemical Weapons Convention

  EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996, article 28

  Telecommunications (Open Network Provision) Voice Telephony Regulations 1998 (SI 1998/1580), regulations 26(6), 29(3) and 30(3)—

EC Directive 98/10/EC

  EC Competition Law (Articles 88 and 89) Enforcement Regulations 1996, articles 6, 14 and 16

  Telecommunications (Interconnection) Regulations 1997, regulations 6(11), 8(3), 11(2) and ICD 8.8-8.9— EC Directive 97/33/EC

  European Communities Act 1972, section 11

  Much of the information held by financial services regulators (Financial Services Authority, Building Societies Commission and the Bank of England) is subject to statutory bars and there are stringent restrictions imposed by professional secrecy provisions contained in EC single market legislation on banking, insurance and investment services (eg article 25 of the Investment Services Directive 93/22/EC). The professional secrecy provisions in EC financial services directives allow exchange of regulatory information between member states and third countries. But as with information obtained from firms, restrictions apply to further disclosure of such information by the member state receiving the information.

  Plant Protection Products Regulations 1995 (as amended), regulation 17—

implements a specific European obligation for member states under article 14 of Council Directive 91/414 of 15 July 1991 concerning the placing of plant protection products on the market.

  Genetically Modified Organisms (Contained Use) Regulations 1992 (SI 1992/3217), regulation 15—

based a mandatory EU requirement

  Notification of New Substances Regulations 1993, regulation 18(1)—

EC Directive 92/32/EC

  Personal Protective Equipment (EC Directive) Regulations 1992 (SI 1992/3139), regulation 3

  Plant Protection Products Regulations 1995 (as amended), regulation 17 and schedule 1—

implements EC Directive 91/414/EC

  Genetically Modified Organisms (Contained Use) Regulations 1992 (SI 1992/3217), regulation 15—

implements EC Directive

  Data Protection Act 1998, section 59—implements EC Directive

June/July 1999



 
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Prepared 29 July 1999