Submitted by the Campaign for Freedom
This is a preliminary response to the Government's
draft Freedom of Information (FOI) bill, which deals with several
of the main issues which concern us. A further response may be
Although we are pleased to see the prospect
of a Freedom of Information (FOI) Act for Britain drawing closer,
we are deeply disappointed with the substance of the draft Bill.
It represents an astonishing retreat from the Government's own
White Paper published only 17 months ago, with the backing of
the whole Cabinet and a preface from the Prime Minister. 
The White Paper had been warmly received, both
domestically and internationally. The Information Commissioner
who supervises Canada's FOI Act wrote that it "has left
Canada trailing in the dust".
While the White Paper was seen as a yardstick for best practice,
the draft Bill is already cited in the opposite context. Commenting
on Japan's recent FOI Act, Britain's former Ambassador to Tokyo
wondered whether it "will be of any more value to the
Japanese citizen than the British illiberal freedom of information
The White Paper indicated a commitment to go
beyond the openness Code of Practice introduced by the Conservative
only does it fail to do this, but in key respects it is weaker
than the Code. It would allow government departments to withhold
some kinds of information which at present they are expected to
disclose under the Code. The relevant provisions are summarised
at the end of this paper.
In numerous areas the White Paper's commitments
have been weakened. The "substantial harm" test has
been replaced by the lower test of "prejudice". The
"simple harm" test for policy advice has been replaced
by an absolute exemption. The binding public interest test has
been replaced by one that is unenforceable, and also permits authorities
to insist on knowing why the applicant wants the information and
to control what they do with it. The proposed right of access
to unrecorded information has been dropped. New catch-all exemptions
unlike those found in any other FOI law have been devised.
While authorities' rights to withhold information
have been systematically strengthened, modest rights which would
help the citizen have been weakened. Three valuable provisions
which appear on the face of many FOI laws have been relegated
to unenforceable codes of practice or "publication schemes".
Authorities will not be legally obliged to assist applicants;
they will not have to give reasons for decisions; and they will
not be required to publish their internal manuals and guidance.
Under the Bill authorities will only be encouraged, not required
to comply with these provisions.
Only in two areas does the Bill adopt a conspicuously
more positive approach than the White Paper. Charges for information
will be low: authorities will be permitted to charge no more than
10 per cent of the costs of locating requested records. The
deliberate destruction or alteration of a requested records will
be an offence. But
whereas the Code normally allows authorities 20 days to reply
to a request, the Bill extends this to 40 working dayswhich
would make it the slowest and most unresponsive FOI Act in the
That is not to say that the Bill will make no
difference. It would lead to more openness on the part of bodies
not currently subject to either the central government or the
NHS codes. Bodies such as universities, schools, publicly owned
corporations, and certain functions of the police, courts and
perhaps Parliament itself will be most affected. It
will make less difference in the National Health Service. NHS
bodies are already subject to an openness code, and
patients have well established legal rights to see their own medical
But the Bill will allow central government to
operate in greater secrecy than it does now. Existing provisions
of the openness code would be replaced by provisions allowing
more information to be withheld. In 1996, Tony Blair argued that
the Scott Report "has made the case for a Freedom of Information
Act absolutely unanswerable". But if another arms-to-Iraq
affair occurred, nothing in the Bill would be capable of shedding
light on it.
More specifically, our main concerns about the
Bill are that:
a class exemption applies to all
information relating to the development of policy, including factual
information, regardless of whether disclosure would harm decision-making.
This represents a retreat from existing standards of disclosure
under the code;
class exemptions apply to information
obtaining during investigations by the police and all regulatory
bodies, including those dealing with safety. Information whose
disclosure could not harm law enforcement or regulatory functions
authorities will be able to refuse
to confirm whether they hold information in the above categories,
even where to do so could not cause harm;
authorities would be able to withhold
information indicating that they are guilty of an offence;
it replaces the White Paper's enforceable
public interest test with one that is discretionary and unenforceable
and would allow authorities to withhold evidence of their own
in many cases authorities will be
entitled to insist on knowing the applicant's motives for seeking
information and to release information subject to a "gagging"
the White Paper's "substantial
harm" test has been replaced by the weaker test of "prejudice";
an inexplicable "catch-all"
exemption allows authorities to withhold harmless information
if, together with any other information including confidential
information which authorities have no intention of disclosing,
the combined information could cause harm;
new exemptions could be created by
Parliamentary order at short notice to deal with requests already
received which cannot otherwise be refused; and
the time allowed for responding to
requests is increased from the Code's 20 days to 40 working days.
3. CLASS EXEMPTIONS
The basic FOI principle is that information
should be disclosed unless an authority can demonstrate that to
do so would cause harm. In cases of dispute, an independent appeals
bodynot the authorityhas the final word on whether
disclosure would in fact be harmful.
The Bill fundamentally rejects this principle.
It allows entire classes of information to be withheld, regardless
The main class exemptions relate to the formulation
and development of government policy
and investigations by law enforcement and regulatory authorities.
other class exemptions apply to communications between Ministers,
work of Ministers' private offices; law
officers' advice; information
covered by legal professional privilege; the
security services, their complaints bodies and bodies such as
the National Criminal Intelligence Service; communications
with the Royal Household, and
the awarding of honours. 
4. POLICY DEVELOPMENT
All FOI laws contain some protection for "policy
advice". This is generally defined as material relating to
the development of government policy which consists of opinion,
recommendation, the exchange of views or similar material. However,
none of the main overseas laws exempts material in the comprehensive
and absolute terms of clause 28(1)(a):
"Information held by a government department
is exempt information if it relates to . . . the formulation or
development of government policy"
The Government would not even have to acknowledge
whether information within this substantial class existed at all.
There are no exceptions to this all-embracing
exemption and no attempt is made to discriminate between disclosures
that are likely to be harmful and those that are innocuous or
perhaps beneficial. All material which has been considered during
the development of policy will be exempt. This would apply not
just to advice, opinion and exchange of views but to factual information
and its analysis, statistics, technical and scientific advice,
and purely descriptive accounts (for example, of the existing
practices of departments). Information supplied by third parties
would also be exempt, whether it came from consultants, lobbyists
representing vested interests or merely from those responding
to public consultation documents.
The exemption would absolve government of the
need to answer even the simplest questions about the basis for
its decisions. Even information which would currently have to
be disclosed under the openness code could be withheld. The exemption
would apply not just while the policy was being drawn up, but
for years after it had been implemented, indeed until the records
reached their 30-year release date.
The Home Office consultation paper itself seems
to have had difficulty grasping just how restrictive these provisions
are. It cites examples of information which the Government has
released voluntarily, including:
"the economic analysis behind the policies
set out in the [DTI's] White Paper `Our Competitive Future' "
"the Government response to consultation
on the Green Paper `A Fair Deal for Consumers' [which] contained
analysis of the policy decisions"
"the White Paper `Conclusions of the Review
of Energy Sources for Power Generation' [which] contained facts
and analysis behind a policy decision on consents for gas fired
power stations . . . including summaries of four consultancy studies
commissioned by the Government"
"Papers relating to the work of the Advisory
Group on Openness in the Public Sector"
The consultation paper comments:
"The Bill, if enacted, will give the public
the right to this kind of information. No longer will information
be provided only at the discretion of a public authority"
This is highly misleading. All these examples
fall squarely within the policy formulation exemption. There would
be no right to any of them under the Bill.
Clause 28(1)(b) extends the class exemption
to communications between Ministers which do not involve policy.
A letter from a Minister to his colleagues reminding them that
new regulations affecting their departments' work are due to come
into force would be exempt, even if the Minister had announced
the letter's existence in a press release. All references to it
by officials could also be withheld. 
Clause 28(1)(d) widens the class to include
all references to a Minister's private office. Someone
using the FOI Act to discover whether his or her urgent correspondence
had been ignored or simply lost would have no right to know whether
it had reached the Minister's private office. The number of staff
employed in the private office could itself be a secret.
Clause 28(3) contains a set of additional exemptions,
which apply both to government departments and to any other public
authority. Nominally, these incorporate harm tests. But the harm
in each case is established by "the reasonable opinion"
of a Minister or public authority. Giving legal weight to the
authority's opinion means the decision can only be challenged
on the limited grounds used by the courts in judicial review cases.
The Commissioner would not be able to overrule a decision merely
because it was wrong, involved an exaggerated view of the harm
or was "founded on a grave error of judgement".
Only if the decision was "irrational" or "outrageous
in its defiance of logic"
or involved "unreasonableness verging on an absurdity"
could it be overturned.
Two of the provisions in clause 28(3) are particularly
notable. The first exempts information which in the authority's
opinion would "inhibit . . . the free and frank provision
This provision applies to advice on any matter, not just the development
of policy. It could allow the real reasons for routine administrative
decisions to be withheld, as they are likely to be based on advice
as to whether particular criteria have been met.
The second permits information to be withheld
where in the authority's opinion disclosure would "prejudice
. . . the effective conduct of public affairs".
This is a substantial catch-all. It is apparently based on a provision
in New Zealand's FOI law. But the New Zealand exemption contains
no less than four separate safeguards all of which have been omitted
here. In the New Zealand exemption: (a) the prejudice is limited
to two specified types of harmit is not open ended as under
the Bill; (b) withholding the information must be "necessary"
to avoid the prejudicea strict test not found in the Bill;
(c) the prejudice must be determined objectivelythe authority's
"opinion" is not relevant; and (d) even where prejudice
is established, the information must be disclosed if there is
an overriding public interest. 
For government departments, the cumulative effect
of all these exemptions will be a blanket of secrecy well beyond
anything found in other countries' laws. Any disclosure will depend
solely on Ministerial discretion. This may also have knock-on
effects for the level of information provided to Parliament. 
Policy Advice and the Code
The Bill's provisions on policy formulation
are weaker than those of the existing code in three respects:
The corresponding code exemption,
Exemption 2, only allows information to be withheld if disclosure
would "harm the frankness and candour of internal discussions".
Even then, the Parliamentary Ombudsman, who supervises it, can
hold that it should be released if there is an overriding public
interest in openness. Neither
of these provisions is found in the Bill.
Under the Bill, the Government can
refuse to even confirm whether it holds particular information,
again regardless of whether to do so would cause harm. This
is not permitted under the Code.
The Code requires government to publish
"the facts and analysis of the facts" which have led
to policy proposals or decisions. The White Paper promised to
repeat this provision. The
draft Bill fails to.
The Parliamentary Ombudsman has reported:
"Policy documents or submissions to Minister
may contain sensitive material which is caught by the exemptions
in Part II of the Code, but I have seen documents obtained as
a result of investigations by my staff which contained facts and
analysis of the facts, which I saw no reason to withhold under
a blanket refusal." 
In several cases, the harm test has prevented
the withholding of information whose main elements were already
or which related to issues decided several years ago. Such
rulings could not be made under the Bill.
Another Ombudsman report dealt with the refusal
by Companies House (CH) to give reasons for a policy decision
that the "electronic signatures" required to authenticate
the identities of company directors must incorporate personal
information such as the individual's national insurance number.
The Ombudsman referred to the Code requirement (omitted from the
Bill) to publish the facts and analysis behind decisions:
"the Code commits . . . bodies . . . to
publish the facts and analysis of the facts which lie behind major
policy decisions . . . it appears to me that CH have failed to
act in accordance with that principle. They have argued that they
can withhold the information . . . because it falls under Exemption
2 . . . [but] . . . any harm which might arise from disclosure
needs to be weighed against the public interest there might be
in making the information available. I do not think CH have considered
this aspect. The matter of the electronic authentication of documents
is clearly, in my view, an area of public interest affecting a
wide range of companies and individuals. It is therefore incumbent
upon CH to explain to those with an interest in the matter why,
as in this case, particular choices have been made and others
not . . . I do not believe that Exemption 2 applies." 
This ruling too, would not be repeated under
The final case involved the Home Office. The
Ombudsman recently criticised the Prison Service for withholding
information from a prisoner partly because it included small amounts
of legal advice and advice to Ministers. The Prison Service privately
acknowledged that apart from this material "there was nothing
on the file which they would particularly wish to withhold".
The request was nevertheless refused partly because it was considered
"a fishing expedition" and partly on the remarkable
grounds that policy on disclosure "was in a state of development"
because of "the forthcoming Freedom of Information legislation".
The memo added:
"to change our stance at this point and
allow fuller access to the document on file . . . could set an
unwelcome precedent for other cases while policy remains in a
state of flux".
The Ombudsman pointed out
that these were not acceptable reasons for withholding information
under the Code, adding that:
"It is not apparent to me that the Prison
Service considered what harm might arise from disclosure of the
advice . . . as is required by Exemption 2. My view is that no
harm could now be caused by disclosure."
This is an outcome that could not occur under
Policy Advice in Ireland
Under the Irish FOI Act of 1997 (as under the
New Zealand and Australian laws) policy advice can only be withheld
if disclosure is shown to be contrary to the public interest.
Ireland's exemption involves a double test:
only matters relating to "the
deliberative process" of the authority, are
exempt under this provision; and
disclosure must be "contrary
to the public interest".
Several types of information are defined as
not falling within this exemption: factual and statistical material
and its analysis; scientific and technical advice; internal rules
and guidelines used in taking decisions affecting individuals;
the reasons for a decision taken by an authority; any report dealing
with the effectiveness of a public authority. Cabinet papers and
minutes are covered by a separate exemptionbut only until
they are five years old. The
scope of the corresponding UK exemption is not limited in any
of these ways.
One case involving several records illustrates
how these provisions have been applied. One record was the agenda
for a Cabinet meeting. The Commissioner upheld the refusal to
disclose, confirming that the record fell within the Cabinet documents
exemption and was not yet five years old.
The next was a list of provisional dates for
future Cabinet meetings. The Commissioner held that this did not
fall within the Cabinet records exemption, did not contain "deliberative"
material either and that even if it did there was no evidence
that its disclosure would harm the public interest. The record
Another dealt with the arrangements for a proposed
visit and speech to the senate by the European Commission President
Jacques Santer which, at the time of the request, had not been
confirmed. The Commissioner again found that the document was
not deliberative, and that even if it was he would not be persuaded
that its disclosure would be contrary to the public interest:
"I can envisage that it might sometimes
be against the public interest to release all the details of a
proposed visit by a foreign dignitaryfor example, if disclosure
might endanger the security of the person concerned or if a foreign
government would find disclosure objectionable. No such considerations
have been advanced in this case and I am satisfied that the Department
has not justified its refusal"
A further record dealt with the Prime Minister's
(then) proposed visit to China, which had since taken place. The
Commissioner pointed out that the only "deliberative"
"a very brief discussion of the relative
merits of using the Government jet or using commercial transport
for the proposed visit." 
Here too he ordered disclosure, pointing out
that that no argument of harm to the public interest had been
A more far-reaching decision involved a request
by a journalist for the monthly budgetary reports which health
boards submitted to the Department of Health and for the related
correspondence. The Commissioner reported that the bulk of the
reports consisted of information about expenditure incurred, the
reasons for increases and steps taken to remain within budgetall
of which was factual, and not covered by the exemption. Where
the reports contained details of proposals, the Commissioner held
that the crucial factor was whether these were still under consideration
(or might be reconsidered in the future)in which case he
accepted that there was a strong case for withholding themor
whether decisions had already been reached, in which case they
should be disclosed. 
These grounds for ordering disclosure do not
exist under the draft Bill.
The Justification for a Class Exemption
The White Paper explicitly rejected a class
exemption for policy material and proposed that the test for access
to policy advice would be "would disclosure of this information
cause harm?" 
". . . the Department believes that release
of the factual information in these records is not in the public
interest. I wish to make it clear that I do not accept this argument.
Of course, the release of factual information may not be without
consequences. In the case of an informed reader, some of the information
in these records is bound to give an insight into specific problems
facing particular health boards or hospitals. This may prompt
questions as to how these problems are being tackled. One can
sympathise with the desire of managers to do their jobs without,
as they might see it, the "distraction" of dealing with
enquiries from the media or other sources. However, a commitment
to greater openness carries with it the burden of dealing with
the increased scrutiny that openness may invite. It follows that
the possibility of such a burden arising is not a factor which
might indicate that the public interest is not served by release
in this case . . .
"In some other cases I have found that information
may have qualified for exemption . . . at the time the record
was created. However, with the passage of time the record can
no longer be exempt. The records in question contain details of
possible revision to the agency's service plan, and possible abandonment
of progressive practices, possible curtailment of elective work
and industrial relations problems that might occur. Other records
refer to possible inability to continue funding for Year 2000
IT conversion systems, a possible extension of curtailment in
services and possible bed closures. I find that at this time the
information is no longer exempt.
"In considering whether with the passage of
time a record can no longer be treated as exempt, I have assumed
that proposals which clearly related to temporary action during
1998, such as proposals to close wards for a specific period no
longer apply and accordingly the record no longer needs to be
withheld. Some records contain other proposals which may not have
been implemented during the year but which may be considered again
in the future. I accept that the passage of time has not removed
the grounds for exemption in respect of such matters." Information
Commissioner of Ireland, Case 98078, dated 31 March 1998.
Little explanation has been given for the decision
to reject this approach. The Home Secretary has suggested that
the disclosure of policy materials overseas has sometimes been
evaded, and that it would be more honest not to impose the requirement
at all. This
is rather like suggesting that because a law is broken, the offending
behaviour should be legalised. An effective FOI Act is bound to
make government uncomfortable: if all requirements which authorities
might be tempted to evade were removed, there would be little
point in legislating at all.
The Home Secretary has also suggested that there
is little need for pubic access to policy material since: "the
product of such private deliberations is almost always a public
announcement of policy." 
But the public account of a policy may not describe
the reality. This was the issue at the heart of the arms-to-Iraq
affair, where the Government concealed from Parliament the fact
that it had changed its policy on arms sales to Iran and Iraq.
This led Sir Richard Scott to report:
"Throughout the period that the Inquiry
has to examine . . . there is to be found, in my opinion, a consistent
undervaluing by Government of the public interest that full information
should be made available to Parliament. In circumstances where
disclosure might be politically or administratively inconvenient,
the balance struck by the Government comes down, time and time
again, against full disclosure." 
That comment may be equally applicable to the
balance struck in the draft Bill. Should the public and Parliament
be misled about a government policy in future, there would be
no prospect of this being revealed under these proposals.
Earlier this year, the Home Secretary said:
"if what officials were saying to Ministers
was going to be immediately available, then it would very seriously
constrain what they could say and actually undermine the responsibility
of Ministers for their decisions. It would place officials in
a political arena and make for much less efficient government."
However, the proposals for greater access to
advice do not involve making it "immediately" available.
Some internal discussions may require confidentiality, particularly
where they involve the discussion of untested ideas, whose feasibility
or desirability had not been considered, or assessments of how
key players are likely to react to proposals, and the tactics
for handling them.
However, once decisions have been taken, the
case for access is much greater. This would allow the public and
Parliament to judge whether the implications of the policy have
been properly considered; whether the potential objections have
been addressed; and whether the likely results are those which
Ministers have promised.
The anticipation of such scrutiny would itself
improve the quality of analysis, encouraging greater rigour. It
would help to counter any tendency to accede to powerful lobby
groups advancing weak arguments, or to brush aside problems in
the hope that no-one will notice. Exposing the true complexity
of an issue may also lead to greater public understanding of the
difficulties faced by government, and the real constraints within
which Ministers operate.
There is support for this approach in New Zealand's
experience, where the post-decisional disclosure of advice has
become common. According
to the former New Zealand Ombudsman:
"The way in which [the exemption provisions]
have been developed in practice has been to recognise that at
certain stages of the policy making process information must be
protected for the sake of the process. These withholding provisions
protect the process rather than the information; other provisions
. . . protect information by virtue of its content. But once the
process has been completed it no longer requires confidentiality;
then the emphasis frequently changes in favour of disclosure .
Once the policy making process is completed then
the harm flowing from disclosure will be limited. Information
can then be released showing the development of the policy, because
it can be judged against the policy itself; this is quite different
from the case where, for example, internal discussion papers are
released prematurely with the risk of being wrongly identified
as settled policy.
The Act also ensures that where especially sensitive
advice has been needed, or especially frank opinions have been
expressed, these are protected on an ongoing basis to ensure that
the process continues to function effectively in future."(emphasis
in the original) "
One of the Bill's most startling feature is
the exemption of information obtained by regulatory authorities.
All information obtained during an investigation into compliance
with any legal requirement is exempt, regardless of whether prejudice
to law enforcement, legal proceedings or regulatory functions
might be caused. 
As far as we know, no FOI law anywhere in the
world adopts this approach. (The Consultation Document is mistaken
in suggesting that the American Act does so.)
No regulatory body would even be required to
admit whether it holds information obtained during an investigation.
the most basic question, such as whether particular premises has
been inspected, would not have to be answered.
The rationale for this approach is impossible
to understand. Any disclosure which might "prejudice"
an authority's law enforcement or regulatory functions is in any
case protected under a different exemption. The
class exemption must be designed to suppress information which
does not prejudice these functions. It should have no place in
The extent to which the rights the public might
expect have beenalmost wilfullydisregarded can be
seen from the provisions on safety information. No less than three
separate provisions bar access to this information. Separate exemptions
information obtained during accident
those into road, rail, air, or ferry accidents and those involving
fires, industrial explosions or unsafe consumer products;
information obtained by bodies responsible
for protecting the health and safety of workers;
information obtained by authorities
protecting the public from industrial or workplace hazards (eg
those caused by asbestos stripping or dangerous scaffolding).
Most people would assume that providing access
to safety information is one of the prime functions of an FOI
Act. To find it explicitly excluded is profoundly shocking.
Employees, or members of the public whose safety
is directly at risk, already have some rights to information under
health and safety legislation. However,
a journalist who wants to draw the public's attention to the problem
has no legal right to information: indeed disclosing information
about a specific premises to such a person may be an offence.
union officers seeking information about action taken by the Health
& Safety Executive at a national level also have no rights
under the existing legislation. They would remain in the dark
under this Bill.
In fact the exemption goes well beyond safety.
None of the regulatory bodies we rely on to protect our rights
as citizens and consumers would have to disclose under this Bill
what it had found during any routine inspection, complaint investigation
or major inquiry. This would apply to regulators dealing with
matters such as trading standards, environmental health, food
safety, child protection, animal welfare, race and sex discrimination,
planning, broadcasting standards, competition policy, utility
regulation, higher education standards, the mis-selling of pensions,
and licensing of all kinds.
The US FOI Act has been used to obtain inspection
reports on meat plants, abattoirs and food companies exporting
to the US; on cruise ships travelling between the two countries;
and on British safety testing laboratories whose data is submitted
to US agencies. The British versions of these reports would continue
to be secret under the proposed UK FOI Act. Yet British enquiries
will still have to rely on America's law to make good the deficiencies
in our own FOI legislation.
Investigations by authorities which enforce
the citizen's obligations would also be exempt. Where disclosure
would prejudice an investigation or prosecution, or deter informants
from coming forward, the case for an exemption is clear. But the
exemption would allow information to be withheld even where an
investigation by bodies such as the Child Support Agency or Inland
Revenue had found nothing amiss.
6. THE POLICE
The Government has rejected the recommendation
of the Macpherson report, into the Stephen Lawrence murder inquiry,
that there should be no class exemption for any kind of police
Bill exempts all information obtained by the police during investigations,
even where its disclosure would not be harmful.
In his evidence to the Public Administration
Committee in April 1998 the Home Secretary justified the proposed
class exemption by suggesting the police would be damaged by the
White Paper's proposed "substantial harm" test:
"If you have a simple harm test, then it
is possible to have more things testable in the courts. If you
go for a substantial harm test, then as far as I am concerned
the public interest requires that matters relating to law enforcement,
investigations and prosecutions have to be exempted altogether."
The Committee responded by proposing a compromise,
that law enforcement information should be subject to the lower
test of "harm" and be subject to the Act in full. The
lower harm test has been introduced, but the class exemptionalthough
slightly narrower than originally proposedis retained.
The police (and other law enforcement bodies)
will not even have to confirm or deny whether they hold particular
they may do so voluntarily. The victims of a theft will not be
entitled to know whether fingerprints have been found in their
home, and if so whether they have led to an identification. The
victim of a road accident will not be entitled to know whether
all the witnesses have been interviewed or what description has
been obtained of the car which hit them. A person who claims to
have been assaulted by a police officer will not be able to know
whether the officer involved has been identified. Someone wrongly
arrested by the police will not be entitled to see the description
of the suspect which had been circulated. The parents of Stephen
Lawrence would not be able to know when the police first learnt
the names of the murder suspects, or how many different informants
identified those suspects.
The former police officer responsible for handling
FOI requests to the South Australian Police Force, has acknowledged
the benefits of the legislation.
"The majority of our applicants were victims
of crime, seeking information in order to make formal claims.
Victims were given every assistance by our staff, as most applicants
did not know exactly what they wanted. Similarly there was an
increasing number of solicitors who specialised in FOI but who
had little or no understanding of our record keeping systems,
and an even poorer understanding of the [FOI] Act . . .
We have had other occasions in which victims
have asked for full information on the police investigation only
to find that information that they were aware of but failed to
pass on to investigators had not been included. In these cases
FOI was responsible for finalising several cases and arrests were
eventually made. It is vital that people are able to communicate
properly and do not just assume that police are aware of something
known to the victim.
Although our department strongly upholds the
aims of the act, in ensuring that as much information as possible
is released, there will always be occasions that involve a refusal.
There are very good reasons for refusing documents, and careful
consideration is given. However, in most cases the information
relates to a third party and the rights of that person must be
considered. The identity of suspects for example is generally
not revealed unless that person has been charged with an offence
. . .
I am happy to say that on my retirement, I can
see a big improvement in the file management, accountability and
record keeping by police officers as a result of the impact of
FOI. There is always going to be some pain in the process, but
the awareness, which FOI has generated over the last eight years,
has made for better policing, file management and public relations."
Another class exemption applies to information
obtained or recorded for the purposes of an investigation which
"relates to the obtaining of information from confidential
This provision is not limited to information which would reveal
the identity of an informant, but would also cover procedural
matters. A potential whistleblower might for example be unable
to discover what safeguards, if any, existed to restrict the circulation
of his or her name within the regulatory body, or in what if any
circumstances it might be disclosed outside the authority.
8. THE "JIGSAW"
An astonishing "catch-all" allows
harmless information to be withheld if, in combination with other
unspecified and even secret information, its disclosure would
cause harm. The exemption would apply if the requested information,
"any other information (whether or not held
by the public authority and whether or not accessible, or likely
to become accessible, to members of the public)" 
would be harmful. This is not intended to protect
national security. It applies where combined information would
prejudice interests such as defence, international relations,
the frankness of advice, relations between the Westminster and
Scottish or Welsh assemblies, and commercial confidentiality.
Where a "jigsaw" of five pieces of
information put together might be harmful, and four were in the
public domain already, an argument for withholding the fifth could
exist. But the exemption is not directed at this situation.
Harmless information could be refused even if
the other four jigsaw pieces are confidential and unlikely ever
to be released. It would apply whenever the harmless information
could add to the harm done by some other information, whether
or not that information is held by the authority and whether or
not there is any prospect of ever becoming public. It is therefore
capable of undermining almost any request that could be made.
For example, if someone wanted background information about a
commercial transaction, and made a point of not asking for the
price (because they assumed this would be regarded as commercially
sensitive) their request could be refused on the grounds that
should they happen to discover the price the combined information
could harm commercial interests.
Authorities will be allowed to withhold information
from the Commissioner which could lead to them being prosecuted
for an offence. This
remarkable provision gives public authorities the right, normally
enjoyed only by individuals or private bodies, to refuse to incriminate
themselves. This type of provision is meant to protect the individual
against the state: here it protects the state against the individual.
This is clearly inappropriate in legislation whose purpose includes
helping to expose misconduct.
The only conceivable argument for this provision
may be that European law requires this privilege to be available
in the case of individuals (eg general practitioners) who may
be defined as "public authorities" under the Act. In
this case, the provision should be redrafted to that the privilege
was not available to other authorities.
10. NEW EXEMPTIONS
New exemptions could be created at short notice
to block requests already received. The exemption would be created
by Parliamentary order and, although it requires the approval
of both Houses of Parliament, this is unlikely to be a great obstacle
to a government with a substantial majority.
The White Paper had ruled out any form of veto,
"a government veto would undermine the authority
of the Information Commissioner and erode public confidence in
the Act." 
11. PUBLIC INTEREST
The Bill requires authorities to consider the
discretionary release of exempt information in the public interest.
same applies to information whose disclosure is refused because
of the cost. We would welcome any requirement to disclose in the
public interest. However,
the Information Commissioner is specifically prohibited from ordering
disclosure on these grounds. Only
the authority can decide where the public interest lies. The Commissioner's
role is limited to ensuring that the authority has considered
the public interest. If it has not, he or she can only send the
decision back for reconsideration.
This is a retreat from the White Paper which
envisaged that the Commissioner would have this power. It
is a weaker arrangement than exists under the Australian, New
Zealand and Irish FOI laws where the enforcing body can make decisions
on public interest grounds. It will even provide a lower standard
of disclosure than now exists under the open government Code,
where the Parliamentary Ombudsman can hold that exempt information
should be disclosed in the public interest. 
In a complaint by the Campaign for Freedom of
Information, involving information claimed to be commercially
confidential, there was a suggestion that the public may have
been deliberately misled in an official consultation paper. However,
the Ombudsman found no evidence of this, reporting that the published
statements were consistent with the internal material. Crucially,
"Had I found that it was not, I should have
concluded that the public interest in disclosing at least some,
and possibly all, of the information was greater than any harm
which might result"
This is a powerful principle. An authority which
misleads the public, will be held accountable. But the new Information
Commissioner will be unable to make such rulings.
A proper public interest test would operate
in two ways. First, it would ensure that the interests of openness
and accountability were considered alongside the case for withholding.
This is particularly important given that the thresholds for exempt
information are so much lower than the White Paper proposed. Second,
it would ensure that an authority would not be able to conceal
its own malpractice. This is the basis for the long standing principle,
that "there is no confidence in iniquity" applied by
the courts in breach of confidence cases. It cannot be right that
an authority which may be denying its actual responsibility for
serious misconduct should also be charged with determining whether
the public interest requires it to disclose that information.
In these circumstances, Ireland's Information
Commissioner would be able to compel disclosure. The UK's Commissioner
would be limited to asking the authority to reconsider.
Cases may follow the pattern of a maladministration
case reported by the Parliamentary Ombudsman. The MOD had failed
to disclose to the complainant the truth about her son's death
during the Falklands conflict in 1982 and withheld information
from the inquest. She later succeeded in obtaining a second inquest,
which reached a different verdict, but the MOD twice rejected
her claims for reimbursement of the legal costs. The Ombudsman
"While it was a discretionary decision for
MOD whether or not to make an ex gratia payment toMrs A the Ombudsman
was not persuaded that in reaching their decision they had taken
into account all the relevant factors and no irrelevant ones.
He put it to the Permanent Secretary that MOD should consider
afresh Mrs A's compensation claim. The Permanent Secretary accepted
that there had been failings in the handling of the conclusions
on the cause of the son's death and that MOD had been unacceptably
slow in correcting the record. He regretted the distress caused
to Mrs A as a result. The record had, however, eventually been
corrected publicly at a very high level. MOD reconsidered the
position in light of the Ombudsman's report but still decided
not to make an ex gratia payment. The Ombudsman sympathised with
Mrs A, but as MOD had reconsidered their decision in the light
of the factors he saw as relevant, he considered he could take
matters no further." 
The Ombudsman, having urged that the original
decision be reconsidered, had exhausted what he could do. The
Commissioner is likely to be in the same position in relation
to public interest.
How, for example, would the Bill help someone
trying to investigate the appalling waste of public funds by the
West Midlands Regional Health Authority which, in the words of
the Public Accounts Committee, had been responsible for "a
waste of at least £10 million, at the expense of health care
for sick people in the West Midlands?" The Committee reported:
"The essence of this mismanagement was that
the responsible official, new to the National Health Service,
was able to follow his own path, making a bonfire of the rules
in the process, uncontrolled either by the Regional Health Authority
or regional senior management. These were very serious failings
at all levels of management, and the Chairman and members of the
Regional Health Authority had seriously neglected their duty to
secure the accountability of regional management".
An FOI requester would certainly have been told
that much of the information was "commercially confidential".
Any decision on a public interest disclosure would be made not
by the Commissioner but by the senior managers whose own negligence
had caused the problem. The outcome would be entirely predictable.
Motives of the requester
The discretionary disclosure arrangements include
some wholly unacceptable features. Before considering such a disclosure,
an authority would be entitled to insist that the applicant reveal
"reasons for requesting the information
and . . . any use which he proposes to make of the information"
This violates the basic FOI principle, that
access to information is a right which everyone enjoys regardless
of their purpose. The White Paper stated:
"Applicants will not need to demonstrate
or state their purpose in applying for information. All requests
will be considered equally on their contents, not on the stated
or presumed intentions of the applicant." 
All applicants could routinely be asked to declare
why they are seeking information and what they intend to do with
it. This is likely because authorities will be required to consider
a discretionary disclosure every time a request involves even
a fragment of exempt information. The majority of applications
are likely to fall into this category. Authorities may even find
it convenient to build questions about the requester's motives
into their FOI application forms. Questioning applicants about
their motives will cause resentment and suspicion. It will also
encourage authorities to discriminate between requesters, disclosing
to those they believe will use information "responsibly"
but withholding it from critics or complainants.
Even worse follows. An authority which releases
information under these provisions can:
"impose such conditions as are reasonable
in the circumstances restricting the use or disclosure of the
information by the person to whom it is disclosed"
We cannot see why applicants should be prevented
from publishing, or using as they see fit, information which has
been disclosed to them "in the public interest".
This provision is fundamentally at odds with the purposes of an
None of the examples which have been cited to
explain this provision appear relevant. They refer to disclosures
which in other countries would be made to the public at large,
or to limited disclosures for research purposes (eg of patient
records to medical researchers) for which well-established protocols
Much information will be "exempt"
merely because it falls into a class exemption, even though disclosure
would not cause harm. To obtain this harmless information, applicants
face the deeply unappetising prospect of having to demonstrate
their "need to know", and then agreeing only to use
the information in accordance with an authority's instructions.
These provisions have no place in a Freedom of Information Act.
Some safeguards may be provided by the requirement
that the restrictions must be "reasonable in the circumstances",
implying that unreasonable restrictions can be challenged by complaint
to the Commissioner. However, many applicants will accept unjustified
restrictions, either because they do not realise that they could
be challenged or because they need the information quickly. Moreover,
the Commissioner's powers in this area are restricted by clause
45(2). If the Commissioner holds that a restriction is unreasonable,
he or she cannot set it aside and oblige the authority to disclose
the information without conditions.
In making such a discretionary disclosure, authorities
will be allowed to exceed the normal 40 day response period
and regulations may permit higher than normal fees to be. 
The White Paper proposed that authorities wishing
to withhold information must show that disclosure would cause
"substantial harm". This has been replaced with the
lower test of "prejudice", allowing considerably more
information to be withheld.
"Prejudice" is the test currently
found in the Code's exemptions, though many exemptions use what
may be the slightly tougher test of "harm". The effect
is that the level of disclosure will be no better than that now
found under the Code.
However, the White Paper had been critical of
the Code's harm tests, which it described as"insufficient"
and proposed that the Bill's tests should be "set in specific
and demanding terms".
The substantial harm test was also seen as analogous
to the revised public interest immunity (PII) test adopted by
the last Government in 1996, in response to the Scott Report.
background papers to the White Paper noted that substantial harm:
"would clearly be more stringent (and so
provide greater openness) than the Code of Practice on Access
to Government Information (which normally exempts on the basis
of simple `harm' or `prejudice') and would be closer to the `real
damage' test of PII. Practical experience of applying a `real
damage' test in litigation indicates that it results in a substantial
reduction in the volume of material which would be withheld."
Introducing the draft Bill, the Home Secretary
indicated that the term "prejudice" was frequently used
in other contexts
and that in practice it would mean that:
"the prejudice has to be real, actual or
of `substance'. 
However, these words do not appear on the face
of bill. Mr Straw explained that the Government intended "prejudice"
to be read in this way, and had made this statement so that the
courts would, in cases of doubt, take account of what he had said,
in line with the House of Lords decision in Pepper v Hart.
In normal circumstances, the courts will take
no notice of what a Minister has said in Parliament. However,
the Pepper v Hart ruling made clear that a Minister's explanation
in Parliament could be considered, but only in interpreting a
provision that was "ambiguous or obscure or the literal meaning
of which leads to an absurdity", and then only if the Minister's
statement directly addresses the question at issue. 
There is no reason why the courts should find
any ambiguity in the meaning of "prejudice". They could
decide that prejudice which is less than "real, actual or
of substance" has occurred. If so, they would take no account
of the Home Secretary's statement to the contrary. If his intention
is that information should only be withheld when the prejudice
is "of substance", the only way to ensure it is to insert
those words into the legislation.
The Bill's approach indicates not merely a retreat
from the objective on improving on the Code's tests, but a readiness
to adopt a lower standard than the Code's. This is the result
of simultaneously (a) lowering the Bill's harm test to (or even
slightly below) the Code's and (b) replacing the Code's substantive
public interest test, with one that is purely discretionary. The
effects of this can be seen in relation to issues such as commercial
Information would be exempt if "constitutes
a trade secret" or if its disclosure:
"would be likely to prejudice the commercial
interest of any person (including the public authority holding
The term "trade secret" is not defined.
To the ordinary person, it may imply a secret manufacturing process,
whose disclosure would enable rivals to secure a significant unfair
competitive advantage, at the expense of the trade secret's owner.
But the courts could adopt a far weaker interpretation, in line
with that proposed by Law Commission:
"We think the term should apply to information
(i) which is not generally known, (ii) which derives its value
from that fact, and (iii) as to which its "owner" has
indicated (expressly or impliedly) his or her wish to preserve
its quality of secrecy."
Under such a definition, "trade secret"
might refer to nothing more than information which has some value
and which the owner does not want to disclose. It could be exempt
from access even if the value is insignificant, or would not be
diminished by disclosure.
The second limb of the exemption is equally
unsatisfactory. It would apply to information which may not even
have come from the company or business involved, and does not
in any sense belong to them. It may not even be confidential.
A report showing that a company was supplying substandard or dangerous
products would be exempt if its disclosure would lead customers
to switch to alternative products. Recent reports about the hazards
of Belgian Coca Cola or dioxin contaminated products could be
withheld on the grounds that alerting the public might "prejudice"
the interests of the overseas manufacturers, importers or even
UK shops with large stock on their hands.
The Bill's test is weaker than the corresponding
the Environmental Protection Act
1990, where "commercially confidential" refers to information
whose disclosure "would prejudice to an unreasonable degree
the commercial interests" of the person concerned.
the US Freedom of Information Act,
which applies to disclosure which "would cause substantial
harm to the competitive position of the person from whom the information
(This contains three features absent from the draft bill's exemption:
it (a) uses the "substantial harm" test originally proposed
in the white paper (b) applies only where the harm is to a person's
competitive position" which can only apply where there is
competition, and (c) applies only if the harm is to the person
who supplied the information.)
Ireland's FOI Act which exempts trade
secrets and information whose disclosure would cause a "material
financial loss" or "prejudice the competitive position"
of the person concerned. Even if such harm is caused, the information
must be released where (a) "disclosure . . . is necessary
in order to avoid a serious and imminent danger to the life or
health of an individual or to the environment" or (b) "the
public interest would, on balance, be better served by granting
than by refusing to grant the request."
All these provisions are significantly better
than the draft Bill's exemption
14. TIME LIMITS
To provide consistency with the Data Protection
Act (DPA) the draft Bill adopts the DPA's 40-day period for responding
This is double the Code of Practice period of 20 days, and longer
than any overseas FOI law. It would make Britian's FOI the slowest
and most unresponsive in the world. If consistency with DPA is
needed, it should be achieved by reducing the 40-day period, either
for all bodies or just for public authorities.
Another provision adopted from the DPA permits
an authority to refuse to disclose information which it holds
at the time the request is received but which it would normally
amend or destroy within a 40-day period.
Whatever the merits of this provision in relation to DP legislation,
it is entirely undesirable here. An authority which deletes unneeded
e-mails every 39 days, would never have to disclose such an e-mail
to a requester, even where in any particular case the information
was readily available. This might even encourage authorities to
adopt such cyclical "weeding" policies, specifically
to evade the bill's requirements.
16. THE HONOURS
Another class exemption applies to information
which relates to "the conferring by the Crown of any honour".
This exemption is not limited to the identities of individuals
considered for honours or opinions on their meritsmatters
already comprehensively protected under exemptions relating to
the frank exchange of views
and the effective conduct of public affairs.
This class exemption would also protect background material, for
example, the criteria to be applied or the procedures to be followed
in seeking or assessing nominations. In this respect also the
bill provides less access than the openness Code of Practice,
where the corresponding exemption is limited to information about
individuals recommended for honours.
17. DUTY TO
The Bill does not require authorities to assist
applicants. Instead, they will be encouraged to do so in a code
of practice issued by the Secretary of State.
The code would not be enforceable. The
Government has previously accepted that there should be a statutory
duty to assist,
as there is under several countries' laws.
This is not a satisfactory solution. Authorities
will have statutory powers which could be exercised in an unhelpful
or even oppressive manner. Reducing the duty to assist to a non-statutory
recommendation only underlines the unequal status of the two parties:
An authority can refuse to process
a request if the applicant does not supply it with "such
further information as it may reasonably require in order to identify
and locate the information requested",
but there is no duty on the authority to help the applicant identify
what information it holds;
Authorities are not required to comply
with requests where to do so would exceed the appropriate cost
but they are not required to suggest to applicants ways in which
the request could be reformulated to reduce the cost.
An authority can refuse to release
information under their discretionary powers if applicants refuse
to answer intrusive questions about their motives.
Authorities are not required to confirm
or deny whether they hold information falling within a "class
exemption" even when to do so would cause no harm;
Authorities can refuse to respond
to "vexatious" requests,
even where the "vexatious" behaviour is a response to
an authority's own obstructiveness in previous contactsas
A statutory duty to assist applicants, would
provide some modest counterbalance to these provisions. Helpful
precedents can be found in the Australian
FOI Acts. Providing this duty on the face of the Bill would:
(a) prevent authorities exercising certain
powers until they had provided or offered assistance to the applicant;
(b) help to ensure that applicants were aware
of the authority's responsibility to offer assistance;
(c) give the Commissioner powers to issue
enforcement notices over a failure to assist, for example by requiring
an authority to make available published guidance setting out
information that other applicants might require.
The openness Code explicitly requires authorities
"to give reasons for administrative decisions to those affected",
as do several overseas FOI laws.
The White Paper stated the FOI Act would establish a similar duty.
The Bill contains no direct duty.
Instead, this provision is relegated to an unenforceable
aspect of the "publication schemes" which authorities
are required to adopt. In these schemes, authorities must set
out the classes of information which they publish or intend to
publish, and in doing so must:
"have regard to the public interest . .
. in the publication of reasons for decisions".
This is doubly unenforceable. An authority cannot
be forced to include a commitment to give reasons in its scheme.
Where it does provide such a commitment, the authority cannot
be forced to comply with it in any particular case. In either
case, the Commissioner's only remedy would be to issue a "practice
but an authority could not be compelled to comply with such a
recommendation. The applicant could try to make an FOI request,
asking for the reasonsbut the answer might well prove to
fall within any of several of the unacceptably broad exemptions.
The same pattern applies to administrative manuals.
The Code requires authorities to publish:
"explanatory material . . . including such
rules, procedures, internal guidance to officials and similar
administrative manuals as will assist better understanding of
departmental action in dealing with the public".
All the main FOI laws contain a similar provision.
The White Paper proposed to follow suit but the Bill fails to
do so. It is possible that authorities may be advised to consider
including manuals in their "publication schemes", but
compliance will not be obligatory.
20. CODE OF
In a number of important aspects the draft Bill
is weaker than the non-statutory openness Code introduced by the
last Government in 1994. In these areas, the introduction of this
Bill would remove existing rights to information and would permit
greater secrecy on the part of central government.
|Draft Bill ||Openness Code
|Exempts all information relating to the "formulation or development of government policy".
||Information about policy formulation is available so long as disclosure does not "harm the frankness and candour of internal discussion"
|Exempts the analysis underlying new government decisions or policy proposals.
||"the facts and analysis of the facts" leading to decisions or proposals must be published once the decision or proposal is announced.
|Prohibits the Commissioner from ordering disclosure of exempt information on public interest grounds.
||The Parliamentary Ombudsman can recommend that exempt information should be disclosed in the public interest.
|No duty to publish internal guidance used by an authority in its dealings with the public.
||Requires authorities to publish such internal guidance.
|No duty to give reasons for administrative decisions. Authorities will be encouraged to do so when issuing "publication schemes", non-enforceable guides to the information they will make available.
||Requires authorities to give reasons for administrative decisions.
|Information must be supplied within 40 days.
||Information must be supplied within 20 working days.
"Your Right to Know: The Government's Proposals for
a Freedom of Information Act", Cm 3818, December 1997. Back
In his annual report, he wrote: "These reports have
usually resisted temptations to compare Canada's Access to Information
Act with similar legislation in other countries. Not only are
such comparisons mostly irrelevant, if not invidious, the Canadian
statute has been rightly seen as being in the forefront of enlightened
right-to-know laws. Over the years delegations from abroad have
come to the Information Commissioner's office to learn the sometimes
arcane arts of access at first hand. Parliament has reason to
be proud of what it created some 15 years ago.
Parliament should know this year, however,
that Canada's once brave, state-of-the-art Access to Information
Act is being left behind by Britain, of all countries, the mother
not only of parliaments but the culture of bureaucratic secrecy.
To be by-passed by some recent provincial access regimes in Canada
is one thing. But by the nation that raised secrecy to an art
form, that produced Yes Minister and Sir Humphrey's law? That
is the cruellest cut of all.
It was flattering that the Cabinet Minister
responsible for the British Labour Government's blueprint for
a freedom of information law, Dr David Clark, made Canada and
the Information Commissioner's office his first port of call.
But he has left Canada trailing in the dust." Information
Commissioner of Canada, Annual Report 1997-98. Back
Sir Hugh Cortazzi, "Disclosure Laws Fall Short".
The Japan Times, 6/6/99. Back
The Code of Practice on Access to Government Information
("the openness code") introduced in 1994 requires central
government bodies to release information on request, subject to
various exemptions. A parallel 1995 code applies to the NHS. Complaints
about non-compliance are investigated by the Parliamentary and
NHS Ombudsman respectively. Although the codes are not legally
binding, the Ombudsman's rulings are invariably accepted. The
codes were originally criticised because they only required authorities
to release "information" not copies of actual documents.
However, in his first ruling under the code, the Parliamentary
Ombudsman said that unless some of the information in a document
was exempt, he would expect an authority to release all
the information in it, which could best be done by releasing the
document itself. The codes are still in place but will be replaced
when the FOI Act comes into force. Back
"Freedom of Information. Consultation on Draft Legislation",
Home Office, May 1999, Cm 4355, para 58. Back
Clause 66(1). Back
Clause 10(1). Back
See para. 28 of the consultation document. Back
Code of Practice on Openness in the NHS, introduced
in 1995. Back
Manually held medical records are available under the Access
to Health Records Act 1990, and computerised medical records have
been accessible under the Data Protection Act since 1987. Back
Clause 28(1)(a) Back
Clauses 25(1) and (2) Back
Clause 28(1)(b) Back
Clause 28(1)(d) Back
Clause 28(1)(c) Back
Clause 33 Back
Clause 18(1) Back
Clause 29(1)(a) Back
Clause 29(1)(b) Back
For a further account of the Campaign's views on access
to policy advice see two earlier publications (i) "Response
to the Freedom of Information White Paper", March 1998, pages
19-24; and (ii) "Freedom of Information: Key Issues",
December 1997. Both are available on the Campaign's website: http://www.cfoi.org.uk Back
Clause 28(4)(a) Back
Home Office. "Freedom of Information. Consultation
on Draft Legislation", Paragraphs 5-6. Back
The exemption is not restricted to Ministerial communications
themselves, but extends to anything which "relates to"
such communications. Clause 28(1)(b). Back
Clause 28(1)(d). Back
Halsbury's Laws of England Vol 1(1), 4th ed. 1989, para
Lord Diplock in Council of Civil Service Unions v Minister
for the Civil Service  AC 374. Back
Lord Brightman in R v Hillingdon LBC ex p. Puhlhofer 
1. AC 484 at 518. Back
Clause 28(3)(b)(i). Back
Clause 28(3)(c). Back
Section 9(2)(g) of the Official Information Act 1982 [New
Zealand], permits information to be withheld where this is "necessary
to . . . maintain the effective conduct of public affairs through
(i) the free and frank expression of opinion by or between or
to Ministers of the Crown or officers and employees of any department
or organisation in the course of their duty; or (ii) the protection
of such Ministers, officers, and employees from improper pressure
or harassment". Under section 9(1) such information must
nevertheless be released if "the withholding of that information
is outweighed by other considerations which render it desirable,
in the public interest, to make that information available". Back
Since 1996, the Government has agreed that information which
could be disclosed to the public under the openness code, should
not be withheld when responding to MPs' questions. (See HC (1996-97)
67, pp xv-xvi). However, the Bill would remove some existing rights
to internal advice under the code, making it easier for such information
to be withheld in Parliamentary answers. Back
Exemption 2, Internal discussion and advice. Back
Code of Practice on Access to Government Information, Part
II, Reasons for confidentiality. Back
Clause 28(4)(a). Back
Cc. 3818, para.2.18. Back
Parliamentary Ombudsman. Selected Cases, April-October 1998,
Vol 2, Access to Official Information, 2nd Report Session 1998-99,
HC 5, page 3. Back
In one case, the Ombudsman held that board minutes should
be disclosed, because "they record only actions taken and
decisions reached . . . knowledge of most, if not all, of the
decisions and action . . . was in the public domain . . . I could
not see how disclosure of information which had already been made
public would harm the frankness and candour of internal discussion."
Parliamentary Ombudsman, 4th Report, 1997-98, Vol 1, Case A.43/96,
para 2.20. Back
In another case the Ombudsman reported: "I do not believe
that it would [harm the frankness of internal discussion] given
that the report itself is now nearly three years old and that
the essential factual details it contains are already matters
of public record. Events have moved on . . . I do not consider,
therefore, that Exemption 2 applies in this case." Parliamentary
Ombudsman, 4th Report, 1997-98, Vol 1, Case A32/96, para 3.10. Back
Parliamentary Ombudsman, 5th Report 1997-98, HC 438, Case
He commented: "First, if the Prison Service's view
was that the file contained nothing untoward how could they then
justify withholding the information from Mr G under the Code?
. . . Second . . . I was concerned at the implication that the
Prison Service should withhold information until the proposed
legislation on "Freedom of Information" has been passed.
While the Code continues to be in operation the Ombudsman expects
departments and bodies within his jurisdiction to act in accordance
with its principles. Third, it may be reasonable, in principle,
to advise a Minister that the legal advice and advice to Ministers
should not be released, as the Prison Service did in this case,
because that is in accordance with the Code . . . but they went
on to say that all other information on the file should be withheld
because Mr G's request amounted to a "fishing expedition"
and because disclosure would set an unwelcome precedent for other
cases. Those are not acceptable reasons for refusing to release
information as far as the Code is concerned". Back
This refers to the processes of "examining the merits
of various courses, advising, weighing up or evaluating competing
arguments or considerations" "FOI Manual: A Guide to
the Freedom of Information Act", FOI Central Policy Unit,
Department of Finance, Dublin, April 1998. Back
Freedom of Information Act 1997 [Ireland], section 20(1). Back
Freedom of Information Act 1997 [Ireland], section 19(3). Back
Information Commissioner of Ireland. Decision No 9840, 13
November 1998. Back
The Commissioner's ruling reads, in part: "The Department
has taken a narrow view of the public interest . . . The primary
aim of the health care services is to meet the health needs of
the community. While this must be done in a planned cost efficient
manner, the public interest is not limited to matters of cost
efficiency alone. Where cutbacks of major importance to the provision
of health care services are being made, there is also a public
interest in the community knowing what these may be. The Department
and the health agencies are administering the health services
on behalf of the community. There is a public interest in the
community knowing as much about how the services are being administered
as is consistent with the provision of an efficient and effective
service. This does not mean that the public has the right to know
every proposal that is made. Indeed, there is a strong argument
in favour of protecting proposals from release at an early stage
in order to allow the public body to properly consider the matter.
However, once the decision to proceed with any proposed action
is taken, the need to withhold the release of the information
weakens. Furthermore the argument advanced that the information
once released will be used (or abused) in some particular way
or misinterpreted or will not be properly understood reflects
an attitude more akin to that which prevailed in an era dominated
by the Official Secrets Act rather than one governed by the FOI
Act. The motives of requesters for seeking information have to
be disregarded in dealing with a request (section 7(4) of the
Act) . . . Back
It said: "We do not propose a restrictive approach
along these lines. Indeed, unlike previous UK Administrations,
we are prepared to expose government information at all levels
to FOI legislation" Paragraph 3.12. Back
Introducing the draft Bill in the House of Commons, Mr Straw
said: "Some countries with freedom of information regimes
have not given proper protection to policy formulation and advice.
The paradox of their situation is that, far from that leading
to an increase in the accountability of Ministers and decision
makers, it has reduced accountability because it has cut the audit
trail. Officials and Ministers have gone in for Post-it notes
and oral decisions which should have been properly recorded, or
for devices for ordaining all sorts of documents which have nothing
to do with the Cabinet or Cabinet Committees as Cabinet documents.
We want a straightforward and honest regime which recognises that
we are dealing with three competing rights-the right to know,
the right to privacy and the right to confidentiality. Getting
the balance right is difficult, but I think we have achieved it."
House of Commons debates, 24.5.99, col. 31. Back
House of Commons Debates 24 May 1999, col. 22. Back
Report of the Inquiry into the Export of Defence Equipment
and Dual-Use Goods to Iraq and Related Prosecutions, chaired by
the Rt Hon Sir Richard Scott, Volume 1, HC 115, 1996, page 211. Back
Interview with the Home Secretary in The Stakeholder, January/February
1999, vol. 2 No 6. Back
The New Zealand Law Commission has reported that: "Since
1982 [when FOI was introduced] there has been a fundamental change
in attitudes to the availability of official information. Ministers
and officials have learned to live with much greater openness.
The assumption that policy advice will eventually be released
under the Act has in our view improved the quality and transparency
of that advice." Law Commission, `Review of the Official
Information Act 1982', October 1997, Wellington, New Zealand,
page 5. Back
Nadja Tollemache, Paper at Institute of Policy Studies Seminar
on the Official Information Act 1982, held 16 May 1989. Back
Clause 25(2)(a). Back
Table 2 on page 16 of the consultation document states that
the US Act contains class exemptions for investigatory and law
enforcement records. In fact the relevant provision, Exemption
7, is based on a series of harm tests. This table contains several
other inaccurate references to the US Act. Back
Clause 25(4). Back
Clause 26. Back
Clause 25(2)(a)(iii) states: "Information held by a
public authority is exempt information if it has at any time been
held by the authority for the purposes of . . . any investigation
. . . which is conducted by or on behalf of the authority . .
. by virtue of powers conferred by or under an enactment . . .
for the purpose of ascertaining the cause of an accident". Back
Clause 25(2)(a)(vii). Back
Clause 25(2)(a)(viii). Back
Health & Safety at Work Act 1974, section 28(8). Back
The Health & Safety Executive considers that such disclosures
are prohibited by sections 28(2), 28(7) and 33(i)(j) of the Health
& Safety at Work Act 1974. Back
The Macpherson report concluded "we consider it an
important matter of principle that the Police Services should
be open to the full provisions of a Freedom of Information Act.
We see no logical grounds for a class exemption for the police
in any area" (para. 46.32). It recommended that: "that
a Freedom of Information Act should apply to all areas of policing,
both operational and administrative, subject only to the `substantial
harm' test for withholding disclosure." (Recommendation 9). Back
HC 398-I, Q.508. Back
HC 398-I, para. 30. Back
Clause 25(4). Back
Geoff Rawson, Freedom of Information Review (Monash
University, Australia), No 76, August 1998. Back
Clause 25(3)(b). Back
Clause 37(1)(a). Back
Clause 44(7). Back
Paragraph 5.18. Back
Clause 14. Back
See two Campaign for Freedom of Information publications:
(i) "Response to the Freedom of Information White Paper''
March 1998, pages 25-35; and (ii) "Freedom of Information:
Key Issues", December 1997. Both are available on the Campaign's
website: http://www.cfoi.org.uk. Back
Clause 45(2). Back
The White Paper stated: "cases involving the disclosure
of information are often complex and sometimes require fine judgements
to be made on whether the public interest in disclosing information
should or should not prevail over a competing public interest
in withholding information. There is a clear need for an expert
review body to exercise such judgements." Cm 3818, para 5.1. Back
The code states: "In those categories [of exemption]
which refer to harm or prejudice, the presumption remains that
information should be disclosed unless the harm likely to arise
from disclosure would outweigh the public interest in making the
information available." [Part II, Reasons for confidentiality]. Back
This related to the economic implications of the BNFL THORP
Parliamentary Commissioner for Administration, 4th Report
Session 1997-98, HC 804, Case A.29/95. Back
Parliamentary Commissioner for Administration, Annual Report 1997-98,
page 39. The Ombudsman reported that following the 1997 election
the new Government decided to reconsider the request and agreed
to pay Mrs A £10,000 compensation. Back
Public Accounts Committee, 8th Report, Session 1993-94, "The
Proper Conduct of Public Business" HC 154, January 1994,
page xii. Back
Clause 14(4)(b). Back
Cm 3818, para 2.7. Back
Clause 14(6). Back
Clause 14(3). Back
Clause 14(6). Back
Clause 14(5). The explanatory notes on the draft Bill confirm
that authorities will have to reach a decision "within a
reasonable period but not within a specified time limit"
[para 62]. Back
Clause 14(7). Back
Cm 3818, para 3.6. Back
Cm 3818, para 3.7. Back
This provided that in seeking a court's agreement to withhold
information that was relevant to legal proceedings, the government
would have to show that its disclosure would cause "serious
harm". The then Attorney-General stated: "The new emphasis
on the test of serious harm means that Ministers will not, for
example, claim PII to protect either internal advice or national
security material merely by pointing to the general nature of
the document. The only basis for claiming PII will be a belief
that disclosure will cause real harm . . . a document will not
attract PII simply because it falls into a pre-defined category."
Sir Nicholas Lyell, Hansard, Commons Debates, 18.12.96, col
"Your Right to Know-Background Material", Cabinet
Office, January 1998, paragraph 100. Back
Mr Straw said: "We have looked at the use of the word "prejudice"
a good deal. One of the reasons that it was chosen by parliamentary
counsel was that it is in greater use than the word "harm".
The House will be fully familiar with the fact that it crops up
in paragraph (4) of part II of schedule 12A of the Local Government
Act 1972. The point about that-it is, of course, an Act that was
passed under a previous Administration-is that it talks about
information whose publication would prejudice the authority. The
use of the word "prejudice" crops up again in the Contempt
of Court Act 1981. More important, it has been the subject of
much judicial definition under the European convention on human
rights, so its use is appropriate. Of course, that could be the
subject of more consideration. Hansard, Debates, 24/5/99, cols
Hansard, House of Commons Debates, 24/5/99, col 22. Back
Mr Straw said: "following the Pepper v Hart judgment
by the Appellate Committee of the House of Lords, if an issue
relating to the interpretation of the Bill and of prejudice comes
to court, their Lordships in the Appellate Committee take account
of what Ministers have said in explanation. I am sure that any
court will take account of the definition that I have used-"real,
actual or of substance"-whether or not it is possible to
write it into the Bill. That is one of the reasons why I have
put it on the record Hansard, House of Commons Debates, 24/5/99,
col 26. Back
Lord Browne-Wilkinson, Pepper v Hart  1 All ER 42,
at 64. 13. COMMERCIAL CONFIDENTIALITY Back
Clause 34. Back
Law Commission, "Legislating the criminal code: Misuse
of trade secrets". Consultation Paper No 150, 1997, para
Environmental Protection Act 1990, section 22(11). Back
This is the test set out by the Court Appeals for the District
of Columbia Circuit in what is considered the leading case on
the issue: National Parks and Conservation Association v Morton
(1) 498 F.2d 765 (D.C. Cir 1974). Back
Freedom of Information Act 1997 [Ireland], Section 27(1)(b). Back
Freedom of Information Act 1997 [Ireland], Sections 27(2)(b) and
(e) and 27(3). Back
Clause 10(1). This reflects sections 7(8) and (10) of the Data
Protection Act 1998. 15. DELETED DATA Back
Clause 8(6). This reflects section 8(6) of the Data Protection
Act 1998. Back
Clause 29(1)(b). Back
Clause 31. Back
Clause 28(3)(b). Back
Clause 28(3)(c). Back
Exemption 8(c) of the Code applies to "Information, opinions
and assessments given in relation to recommendations for honours". Back
Clause 38(2)(a). Back
The Commissioner's only remedy to non-compliance would be to issue
a non-binding "practice recommendation" under Clause
The Government's Response to the Public Administration Select
Committee's Report on Freedom of Information (21 July 1998) stated:
"The statute will also require public authorities to assist
enquirers in certain circumstances to define the information they
are seeking". Back
Clauses 8(3) and Clause 14(4)(a). Back
Clause 12(1). Back
Clause 14(4)(b). Back
Clauses 25(4), Clause 27(2)(a); Clause 28(4)(a); Clause 29(2). Back
Clause 13(1). Back
Freedom of Information Act 1982 [Australia], Sections 15(3)(b),
Section 6(2) of the Irish FOI Act states: "It shall be the
duty of a public body to give reasonable assistance to a person
who is seeking a record under this Act (a) in relation to the
making of the request . . . for access to the record, and (b)
if the person has a disability, so as to facilitate the exercise
by the person of his or her rights under the Act." Section
10(2) prevents an authority from refusing a request which is so
voluminous as to be disruptive unless it "has assisted, or
offered to assist, the requester concerned in an endeavour so
to amend the request" to make it manageable. 18. REASONS Back
Code of Practice on Access to Government Information, Part
1, paragraph 3(iii). Back
See section 18(1)(a) of Ireland's Freedom of Information
Act 1982 and section 23 of New Zealand's Official Information
Act 1982. Back
Cm 3818, para 2.18. Back
Clause 6(3)(b). Back
Clause 41(1)(b). Back
Code of Practice on Access to Government Information, Part
1, paragraph 3(ii). Back
Clause 28(1). Back
Code of Practice on Access to Government Information, Exemption
Clause 28(1). Back
Code of Practice on Access to Government Information, Part
1, paragraph 3(i). Back
Clause 45(2). Back
Code of Practice on Access to Government Information, Part
II, "Reasons for confidentiality". Back
Code of Practice on Access to Government Information, Part
1, paragraph 3(ii). Back
Clause 6(3)(b). Back
Clause 10(1). Back