MINUTES OF PROCEEDINGS RELATING TO THE
REPORT
TUESDAY 15 JUNE 1999
Members present:
| Mr Peter Bradley | Ms Margaret Moran |
| Mr Desmond Browne | Mr Mark Oaten |
| Mr Ronnie Campbell | Mr Brian White |
| Ms Helen Jones | Dr Tony Wright |
* * * * * *
Dr Tony Wright declared a non-pecuniary interest
as a former co-chairman of the Campaign for Freedom of Information.
* * * * * *
[Adjourned till Monday 21 June at Six o'clock.
TUESDAY 22 JUNE 1999
[MORNING SITTING]
Members present:
Dr Tony Wright, in the Chair
| Mr Peter Bradley | Ms Margaret Moran |
| Mr Desmond Browne | Mr Richard Shepherd |
| Mr Ronnie Campbell | Mr Brian White |
| Ms Helen Jones | |
* * * * * *
Mr Richard Shepherd declared a non-pecuniary interest
as a co-chairman of the Campaign for Freedom of Information.
* * * * * *
[Adjourned till this day at a quarter past Two
o'clock.
WEDNESDAY 28 JULY 1999
Members present:
Dr Tony Wright, in the Chair
| Mr Peter Bradley | Mr Richard Shepherd |
| Mr Desmond Browne | Mr Andrew Tyrie |
| Ms Helen Jones | Mr Brian White
|
* * * * * *
The Committee deliberated.
Draft Report (Freedom of Information Draft Bill)
proposed by the Chairman, brought up and read.
Ordered, That the draft
Report be read a second time, paragraph by paragraph.—(The
Chairman.)
Paragraphs 1 to 6 read and postponed.
Paragraphs 7 and 8 (now paragraphs 2 and 3) read
and agreed to.
Paragraph 9 (now paragraph 4) read, amended and agreed
to.
Paragraphs 10 to 15 (now paragraphs 5 to 10) read
and agreed to.
Paragraph 16 (now paragraph 11) read, amended and
agreed to.
Paragraphs 17 to 19 (now paragraphs 12 to 14) read
and agreed to.
Paragraph 20 (now paragraph 15) read, amended and
agreed to.
Paragraphs 21 to 26 (now paragraphs 16 to 21) read
and agreed to.
Paragraph 27 (now paragraph 22) read, amended and
agreed to.
Paragraphs 28 to 48 (now paragraphs 23 to 43) read
and agreed to.
Paragraph 49 (now paragraph 44) read, amended and
agreed to.
Paragraphs 50 to 54A (now paragraphs 45 to 50) read
and agreed to.
Paragraph 55 (now paragraph 51) read, amended and
agreed to.
Paragraph 56 (now paragraph 52) read, amended and
agreed to.
Paragraphs 57 to 92 (now paragraphs 53 to 88) read
and agreed to.
Paragraph 93 (now paragraph 89) read as follows:
'The existing class-based exemption in the Bill is
certainly far too broad and not tightly enough defined. Some other
countries limit their class-based exemption to Cabinet Papers.
This can, however, lead to some abuse, with documents becoming
spuriously identified as Cabinet papers in order to gain the benefit
of the exemption. We accept that communications between Ministers,
Cabinet and Cabinet Committee proceedings, as well as the provision
of advice by law officers should be covered by a class-based exemption
in the Bill. We doubt, however, that information relating to "the
formulation or development of government policy" is a sufficiently
well-defined class. Nor do we believe that a class-based exemption
for the operation of a Ministerial private office is appropriate.
We recommend, instead, that information that needs to be protected
under these two headings should be covered under the contents-based
exemptions in subsection (3).'
Question put, that the paragraph stand part of the
Report.
The Committee divided.
| Ayes, 5 | Noes, 1 |
| Mr Peter Bradley | Mr Andrew Tyrie |
| Mr Desmond Browne
Ms Helen Jones
Mr Richard Shepherd
Mr Brian White
|
Paragraphs 94 to 96 (now paragraphs 90 to 92) read
and agreed to.
Paragraph 97 (now paragraph 93) read as follows:
'We believe that the drafting of a provision allowing
for the disclosure of factual background material should not be
too taxing. Similar provisions exist in other Freedom of Information
Act. The box opposite shows the Irish example. We accept that
there may be difficulties in defining where background material
stops and policy advice starts, but suspect that in practice public
authorities and the Information Commissioner will together be
able to come to a workable definition. We therefore recommend
that the exemption for decision-making and policy formulation
should specifically not be taken to apply to purely factual information
held by public authorities, nor to analysis, if that information
has been created in order to inform policy decisions, and that
this distinction should be clearly drawn in the Bill.'
Question put, that the paragraph stand part of the
Report.
The Committee divided.
|
Ayes, 5 | Noes, 1 |
| Mr Peter Bradley | Mr Andrew Tyrie |
Mr Desmond Browne
Ms Helen Jones
Mr Richard Shepherd
Mr Brian White |
Paragraphs 98 to 109 (now paragraphs 94 to 105) read
and agreed to.
Paragraph 110 (now paragraph 106) read as follows:
'As with most of the other exemptions, it would be
possible for an authority to release information which is exempt
under this clause on consideration of the public interest in doing
so under clause 14. Clifford Chance say that this is unacceptable
to many businesses. "The legislation should be concerned
with disclosure of public information, not private commercial
information". Therefore they say that clause 14 should not
apply to information exempt under this clause, as it does not
to information exempt under clauses 18 and 27. We reject
this argument. Mr Thomas argued that how the public interest will
be interpreted creates uncertainty which, Mr Amos told us, is
uncomfortable for business organisations: "I think the level
playing field is the critical thing. An unpredictable, uneven
playing field is very, very uncomfortable. I do not believe there
is any real risk of secrets or serious commercial information
becoming available in terms of the clauses in this Bill, in terms
of other laws and in terms of customer practice and attitudes
of people who would implement it. Openness is less of an issue
than this predictability question". Yet, as he went on to
say, case law would provide fairly quickly a basis for that predictability.
It would do so, we might add, much more quickly if the interpretation
of the public interest were something open to argument before,
and determination by, the Information Commissioner and Tribunal.
We recommend that in this clause there should be an explicit
public interest test to be balanced against the prejudice arising
from disclosure. One thing which might speed up the process
of generating certainty on this point is, as our witnesses told
us, an effective appeals system.'
Question put, that the paragraph stand part of the
Report.
The Committee divided.
| Ayes, 5 | Noes, 1 |
| Mr Peter Bradley | Mr Andrew Tyrie |
Mr Desmond Browne
Ms Helen Jones
Mr Richard Shepherd
Mr Brian White |
Paragraphs 111 to 142 (now paragraphs 107 to 138)
read and agreed to.
Paragraph 143 (now paragraph 139) read, amended and
agreed to.
Paragraphs 144 to 156 (now paragraphs 140 to 152)
read and agreed to.
Paragraphs 157 and 158 (now paragraphs 153 and 154)
read and agreed to.
Paragraphs 159 to 160 (now paragraphs 155 to 156)
read, amended and agreed to.
Paragraph 161 (now paragraph 157) read, amended and
agreed to.
Paragraphs 162 to 164 (now paragraphs 158 to 160)
read and agreed to.
A paragraph—(Mr Brian White)—brought
up, read the first and second time, amended and inserted (now
paragraph 1).
Postponed paragraph 1 again read, as follows:
'The publication of the draft Bill on Freedom of
Information is a historic moment in the long history of the debate
in this country about openness in government. We welcome the commitment
of the Government to legislate on this subject, and we welcome
the publication of the draft Bill. It sets a foundation upon which
an effective statutory right to information can be built.'
Paragraph disagreed to.
Postponed paragraph 2 again read, as follows:
'The principal aims and benefits of Freedom of
Information are well known. They are:
· Members of the public can participate
in an informed way in the discussion of policy issues, and so
improve the quality of government decision-making;
· Members of the public can find out
what information government and other public bodies hold about
themselves;
· Members of the public, politicians
and journalists can hold the Government and other bodies to account;
We have heard from Ireland about how their recent
Freedom of Information Act was introduced as part of a package
of measures designed to reform the Civil Service and the machinery
of government. Here, too, the introduction of a Freedom of Information
Bill should be seen as an important and integral part of the Government's
agenda for modernising the way the country is run. But to achieve
the aims we have set out, the Bill must be clear in its purpose
and ambitious in its range.'
Paragraph disagreed to.
Postponed paragraph 3 again read, as follows:
'The Bill is undeniably ambitious in its scope.
It will affect almost every public sector body in the country
and many private sector ones as well. Its impact will be felt
by universities, police forces, hospitals and quangos, as well
as by central government departments.'
Paragraph disagreed to.
Postponed paragraph 4 again read, as follows:
'4. It is rather less clear in its purpose. As
we have said above, it strikes a balance between the right to
know, the right to privacy and the need for confidentiality, but
in a way which errs on the side of privacy and confidentiality.
The need for a proper balance is crucial. Without greater incentives
to openness, there will be little change in the degree to which
government in this country is open, efficient and "joined-up".'
Paragraph disagreed to.
Postponed paragraph 5 again read, as follows:
'5. We have fixed upon six key principles against
which the Bill should be measured. We have attached to them our
views of how the Bill matches up to them; and a brief summary
of the way in which we have proposed amendments, where necessary,
to bring the Bill more closely in line with them. Our principles,
together with a summary of our verdict on the Bill and proposed
changes, are:
There should be a clear presumption in favour
of disclosure as a right of citizenship
· Beyond stating the right to information,
the Bill does not make any emphatic presumption in favour of disclosure.
- We propose that within the Bill there should
be a clear statement indicating a presumption that information
should be made available in response to requests.
The public interest in disclosing particular
information should be balanced against the prospect of harm in
doing so, with decisions about where the balance lies in particular
cases being transparent, and reviewable by an independent person,
whose decisions are enforceable.
· The Bill balances the right to know
against the prospect of harm in providing information and makes
those decisions reviewable and reversable by an Information Commissioner.
But the authority's decision on where there is a public interest
in disclosing exempt information cannot be overridden by the Commissioner.
- We propose that authorities should in each
case be required to weigh the public interest in disclosure against
the possible harm caused by it, and to release the information
if the public interest is greater; and that the authority's decision
on the public interest should be clearly open to review and alteration
by the Information Commissioner.
The right of access to information should apply
as broadly as possible, and exemptions to it should be drawn as
narrowly and precisely as possible.
· The Bill's regime of class-based and
contents-based exemptions is over-protective and over-elaborate.
- We recommend a much more tightly drawn set
of exemptions with, where appropriate, a more demanding harm test.
A statutory Freedom of Information regime should
be based, as much as possible, on enforceable rights of access
to information; not on undertakings to consider the discretionary
release of information.
· The Bill contains an enforceable statutory
right to much information; but in the more difficult areas, there
is no right to information, only a duty on the authorities concerned
to consider releasing information using their discretion.
- Our proposals are designed to ensure that
individuals, through the Information Commissioner, can query and
overturn authorities' decisions on where the public interest lies
in particular cases.
The right to information should be simple to
understand, to access and to exercise, and it should be possible
to obtain information reasonably speedily and at reasonable cost.
· The Bill provides a reasonably clear
regime for applicants, and the Government have proposed a liberal
charging regime. But it allows authorities a long time to deal
with requests, and imposes no duty on them to help applicants.
- We propose that authorities should be obliged
to give reasonable help to requesters and suggest some practical
steps the Government can take when setting up systems to deal
with applications.
There should be independent systems of reviewing
and appealing against decisions which balance the interests of
applicant, authority and other parties (and the public interest)
fairly and effectively.
· The Bill provides an effective system
of reviewing and appealing against decisions in the shape of the
Information Commissioner and the Tribunal.
- We recommend increasing the Commissioner's
powers, particularly in relation to the public interest; and,
to remove uncertainty, we recommend that there should be a duty
to consult third parties about disclosures, with a right to appeal
to the Commissioner and the Tribunal.'
Paragraph disagreed to.
Postponed paragraph 6 again read, as follows:
'6. With these improvements we believe that the
Bill will provide a balanced and effective right of access to
information for the citizen, and deliver the kind of benefits
of Freedom of Information which we have identified. A full list
of our detailed recommendations is given at the end of the Report.'
Paragraph disagreed to.
Annexes agreed to.
Resolved, That the Report,
as amended, be the Third Report of the Committee to the House.
Ordered, That the Chairman
do make the Report to the House.
Several Memoranda were ordered to be reported to
the House.
[Adjourned to a day and time to be fixed by
the Chairman.
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