Select Committee on Public Administration Memoranda


Submitted by the National Consumer Council


  Giving consumers a right of access to information makes government accountable to them. It enables them to see how government makes decisions that affect them such as what medicines will be available on the National Health Service, where a new hospital will be built, or whether to act on the safety recommendations of an inquiry or advisory committee. It enables consumers to judge how well regulators are carrying out their work, for example on ensuring train safety or controlling price fixing of utilities, and if government is making the right decisions when delivering public services, such as commissioning new computer systems for ambulances and welfare benefits. When something goes wrong, it helps consumers find out what happened and why.

  While freedom of information as a concept may not be the public's first concern, a lack of openness erodes their trust in government. A January 1999 poll by MORI for the Cabinet Office about risk shows why legislation to create more open government is urgently needed. The survey found:

    —  fewer than a quarter of respondents trust government Ministers to tell the truth;

    —  Ministers were trusted least to advise on the risks posed by pollution and BSE. Scientists and academics were trusted most;

    —  more than nine in 10 people thought the Government should be more open about how it makes its decisions; and

    —  eight in 10 thought when government is unsure of the facts, it should nonetheless publish what information it does have available.

  At local level, a right of access to information enables consumers and local services to work together in partnerships based on informed decision-making. Consumers are able to understand how decisions are made about who will gain admission to a particular school or whose special educational needs will be met; what priority is given to particular medical treatment; why hospital wards will be closed, or what services their local GPs will provide; where parking controls will operate and whether there will be waste recycling services; They are able to judge what influence their elected representatives have on these decisions.

  The National Consumer Council has long believed that freedom of information is a fundamental requirement for any government in its dialogue with consumers and consumer organisations. In our 1982 book, Consuming Secrets, we wrote:

    Open government is likely to be more honest and efficient than government conducted behind closed doors, and in this way the consumer gets better value for money as a taxpayer. Access to official information is also a citizen's best insurance policy to guarantee that government is conducted in the public interest.

  We have waited a long time for a Freedom of Information Bill. Our expectations were raised by the Government's White Paper, Your Right to Know, published in 1997. It set out a framework for an FOI Act that would have given consumers unprecedented access to information held by government. NCC warmly welcomed the White Paper and anxiously awaited the Bill.

The Bill, published in May 1999, was a very mixed blessing. In some ways it improved on the White Paper. But on the whole, the Bill narrows and qualifies the right to access so that it is doubtful whether amidst the acres of small print, the public's right to information survives in usable form and whether it is a step forward or backward from the Open Government Code. Our future FOI Act appears to have evolved from a right of the applicant to a gift from the holder of information.

  The tone and language of the Bill will, in our view, do nothing to encourage a culture of openness. They will not communicate an intention of openness to those who will be making disclosure decisions. In fact, they will do quite the opposite.

  Below, we consider the Bill's strengths and weaknesses and make recommendations for amending the Bill to ensure that it is capable of realising the Government's stated objectives.

  A summary of recommendations is in ANNEX A.


2.1  Wider access

  The draft Bill is published in a very open and accessible format, with clear explanations of the changes from the White Paper and reasons for them. It gives a statutory right of access to information in whatever form the applicant wants it, including the actual documents, not the summaries available under the Open Government Code. The Bill goes further than the Data Protection Act to give subject access to most manual files, not merely "structured files".

  More bodies will be covered. The Bill goes beyond the Open Government Code to cover bodies that do not come under the jurisdiction of the Parliamentary Ombudsman (eg local authorities, certain NDPBs and private companies performing public functions or carrying out government contracts). The Bill proposes to permit disclosure of more activities of the police than the White Paper did. Eventually the activities of Parliament may be brought within its scope.

2.2  Direct access

  It appears that applicants will be able to go directly for information to a company whose activities are covered by the Act, rather than having to get the information through a public authority. However, the drafting of clause 2 is ambiguous on this point. Will a contractor be covered who does not satisfy both of the conditions set out in (2) and (3) or must one or the other be satisfied? If the latter, private sector companies will not be covered.

  Clause 2 needs to make clearer whether private sector companies carrying out public functions or contracts, but who have no statutory or governmental or Ministerial connections, will be covered?

  When applicants for information want to challenge a disclosure decision, they will not have to go through a Member of Parliament (MP) to reach the Information Commissioner. At present the Parliamentary Ombudsman, who polices the Code of Practice on Access to Official Information, must be approached through an MP.

2.3  Affordable access

  The Bill limits the cost of applications to 10 per cent of actual costs of supplying the information. Most applications should be at or below the £10 charge for information under the Data Protection Act.

2.4  Routine publication of information

  Like the White Paper, the Bill requires public authorities to have and publish a scheme for making information available as a matter of course, without waiting for anyone to apply for it.

2.5  Further reaching penalties

  Under the Bill, it is an offence to destroy, alter or conceal a record once it has been requested by an applicant. In the White Paper, these things only became offences once the Commissioner had requested the information.

2.6  Complaints—handling procedures

  A Code of Practice under clause 28 will set out good practice in provision by public authorities of a complaints procedure for applicants not happy with the way the authority has dealt with their request. The Commissioner will have the power to issue practice recommendations dealing with compliance with the Code. The Commissioner will not have to consider a case until it has been through the authority's complaints procedure but will have a role in determining good practice in internal complaints procedures.

2.7  Personal Data

  The Bill integrates the Data Protection and Freedom of Information legislation, giving priority to the protection of personal information. It also integrates the roles of Data Protection Commissioner and Information Commissioner. This will minimise the chances of applicants being marooned without help in grey areas between the two regimes.

2.8  Openness takes precedence

  The Home Secretary has stated to the Select Committee on Public Administration that where two statutes come into conflict, the one affording greater openness to the public will prevail (for example the Local Government Acts, the legislation setting up the Food Standards Agency). We are not clear whether or not this will apply to the Official Secrets Act.


3.1  Purpose clause

  The Bill contains no purpose clause. It confers a right of access to information and then hedges it about with exemptions, some of which are sweeping and subject to no tests of harm. It gives wide discretion to public authorities over whether to disclose information in the public interest. It also relies on a test of "prejudice" rather than requiring evidence of actual damage likely to be caused by disclosure. It would be very easy for a Bill in this form to create a presumption of secrecy rather than openness and to create a culture where exemptions rather than disclosures predominate.

  The Bill needs to begin with a purpose clause to set out clearly the priorities for those exercising discretion and making judgements about harm. It should make clear that the purpose is "to encourage more open and accountable government by:

    —  establishing a general statutory right of access to official records and information". (White Paper, para 1.2);

    —  establishing a presumption that all information will be disclosed unless it can be clearly demonstrated that there is a greater public interest in keeping it secret; and

    —  enabling members of the public to make informed judgements about the way government carries out its functions. [170]

3.2  Right of access to information

  The Bill provides for the disclosure of information held by public authorities or persons providing services for them. Access is qualified in several ways. Clause 1(3)(a) says that the right is to information held by the public authority "otherwise than on behalf of another person". There is no guidance about what this means. For example, is information held by a regulator, for the purposes of licensing decisions, information the regulator holds on behalf of another person and therefore exempt?

  The Bill needs to make clear the precise meaning of "information held on behalf of another person".

  Under clause (6)(b), the right to access applies to information held at the time the request is received, "except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated, being an amendment or deletion that would have been made regardless of the receipt of the request". This is an unsatisfactory test. It will be very difficult to establish whether or not changes were related to the request. The serious penalties for tampering with data (see above) will become difficult if not impossible to impose under these circumstances.

  People who request information should be entitled to have it as it existed at the time of the request.

3.3  Publication

  Clause 6 of the Bill requires every public authority to have a publication scheme, specifying classes of information to be published, the manner in which it will be published, and whether or not a charge will be made. Under subsection 3, each public authority "shall have regard to the public interest" in (a) "allowing access to information held by the authority", and (b) "in the publication of reasons for decisions made by the authority".

  The Government has made much in publicity and in the Consultation Document of the public's access to information about how hospitals, schools, health authorities, and even prisons operate and make decisions. However, we are doubtful that the Bill as currently worded will afford members of the public the rights to information the Government envisages. There is no duty to publish or give reasons for decisions, only to have a publication scheme. Public authorities are merely required to "have regard to the public interest", not even "particular regard"—when they make publication decisions.

  Clause 6(3) should state that public authorities have a duty to publish in the public interest (a) information held by the authority and (b) reasons for decisions made by the authority unless it can be clearly shown that there is a greater public interest in not publishing it.

3.4  Harm tests

  The Bill downgrades the White Paper's substantial harm test to one of prejudice. Prejudice is not defined. In the Case of A-G v British Broadcasting Corporation [1992] COD 264, to "prejudice" something or someone was held to mean to say or do that which is detrimental or injurious to the interests of that thing or person. It is arguable whether this suggests that actual loss, beyond for example embarrassment, must be demonstrated. There is nothing on the face of the Bill requiring the prejudice to be real, actual or of substance.

  The White Paper appreciated how difficult it would be for staff in public authorities to assess harm against undefined factors. It proposed that FOI legislation give an indication of the degree of harm that would justify protecting information for each particular exemption (para 3.4). The Bill does not do this. It contains loose statements such as clause 28(3)(c): "would otherwise prejudice, or would be likely otherwise to prejudice the effective conduct of public affairs". Such an exemption could cover a multitude of sins.

  Any test to justify secrecy should require evidence that prejudice leading to identifiable harm or damage will probably occur if the information is disclosed. The Bill should state that the prejudice must be real, actual and of substance. There should be criteria for each exemption setting out what could constitute prejudice for the purposes of the exemption and what never would—such as embarrassing the Government.

3.5  Public interest override

  Clause 14 downgrades the public interest test from a right the applicant can invoke, enforced by the Commissioner (as the White Paper envisaged), to a discretion where the public authority has the final say. The Commissioner cannot, on the grounds of an overriding public interest, overturn a decision by the authority to refuse information, but may merely require the authority to take the decision again and specify what it ought to take into account.

  The public interest is left as a vague concept. For clarity and understanding, the White Paper thought it necessary for legislation:

    —  to define the public interest;

    —  to apply a public interest test as a "separate, identifiable step" (paras 3.17 to 3.18); and

    —  to set out how a decision on the public interest was to be made (para 3.4).

  The Bill does none of these things, though the Commissioner can give guidance.

  The public interest test should be reinstated as a separate step, with the Information Commissioner able to order disclosure in the public interest even where it can be demonstrated that disclosure would cause prejudice.

  The Bill should attempt to define what constitutes the public interest in this context, making it clear that the definition is not exhaustive. The definition should include:

    —  a general public interest in information being available;

    —  a general public interest in individuals having access to information about themselves;

    —  disclosure of reasons for most decisions;

    —  contributing to the maintenance of social peace and order;

    —  contributing to the administration of justice and enforcement of the law;

    —  revealing and avoiding serious malpractice, impropriety, fraud or breach of public law;

    —  ensuring effective oversight of expenditure of public funds;

    —  keeping the public adequately informed of any danger to public health or safety or to the environment;

    —  ensuring that any public authority with regulatory responsibilities is adequately discharging its functions;

    —  ensuring that the public obtains value for money; and

    —  avoidance of waste or misuse of public funds.

  Clear guidance needs to be provided about what should not be considered when deciding if a disclosure is in the public interest. These should include:

    —  possible embarrassment of government or civil servants;

    —  possible loss of confidence in government;

    —  the seniority of persons involved in the subject matter; and

    —  the risk of the applicant misinterpreting information.

3.6  Imposing conditions on disclosure

  Under clause 14, authorities can require applicants to state the purpose of the request for information, something the White Paper specifically rejected (para 2.7). It can impose conditions on the use by the applicant of information disclosed, including forbidding the applicant from making the information public. We do not believe that freedom of information legislation in any other country does this. Nor do we believe it is feasible for a public authority to provide information to a member of the public and then swear him or her to secrecy. How will such terms be monitored and enforced?

  Clause 14(4), giving the public authority the right to ask applicants to give reasons for wanting information and the right to impose conditions on applicants' use or disclosure of the information, should be deleted.

3.7  A class-based approach

  The Bill adopts a class-based approach to many exemptions rather than assessing each request on the actual information requested. There are a number of "institutional exclusions" like the courts, judicial bodies (eg clause 27). There is an even longer list of "functional exclusions" such as regulatory investigations (eg clause 25). The class-based approach was rejected by the White Paper as not suitable because it did not allow the flexibility of partial disclosure (para 3.3). It means that a range of valuable information (for example about the investigation of accidents) will not be available even if its release would not cause harm of any kind, simply because it falls into one of the excluded categories. A presumption of openness can only exist where the greatest possible number of decisions are taken on the merits of the individual application.

  The presumption should be that every case will be considered on its own merits, with appropriate harm and public interest tests applied. There should be a small number of excluded categories (eg some but not all matters of national security; some but not all information connected with an active criminal investigation). The types of information that can be excluded without a harm test should be very narrowly and specifically defined.

  All other information should be subject to the balancing harm and public interest tests.

  For example for the investigation of an accident, the Bill might provide that:

    —  Certain information about the investigation of an accident might be exempted while the investigation is taking place on the grounds that disclosure would prejudice the investigation. The exemption could, though, be open to challenge on public interests grounds and it would be time-limited.

    —  Once the investigation was completed, information about the way the investigation was conducted, the evidence and background information considered, and the findings would be disclosed unless it could clearly be demonstrated that there was a greater public interest in keeping any of the information secret than in disclosing it.

3.8  Time limits on secrecy

  There are no time limits in the Bill on prohibitions on disclosure. There is not even an explicit requirement that information be disclosed once it ceases to cause prejudice. For example, under clause 25(2), information can be refused "if it has at any time been held by the authority for the purposes of (a) any investigation .  .  .  which is conducted by or on behalf of the authority .  .  .  (iii) for the purpose of ascertaining the cause of an accident, .  .  .  (viii) for the purpose of protecting persons other than persons at work against risk to health or safety arising out of or in connection with actions of persons at work." There is nothing to suggest that such exemptions will cease to apply once the investigation has been conducted, even if disclosing the information at that stage will cause no prejudice or there is a greater public interest in disclosure. Other FOI Acts have sunset clauses stating a time or a circumstance after which exemptions no longer apply.

  Every exemption should have a clause specifying a time or circumstance after which the exemption will no longer apply or the applicant has a right to ask for the decision to be retaken. Where an event will not trigger disclosure, there should be a standard time limit of say two years, with public authorities or applicants able to request a variation, provided good reasons are provided. In many cases, there should be an automatic review at that point.

  When applicants are refused information, the refusal should specify when the time limit runs out and what applicants can do at that point.

3.9  Future publication

  Clause 17 allows information to be withheld if it will be published "at some future date (whether determined or not)", provided it is reasonable in all the circumstances to withhold it until publication. The White Paper required the public authority to give an indication of the plans for publication. The test for refusing disclosure, reasonableness, appears to be an easier one to satisfy even than prejudice. The authority will have neither to give a firm publication date nor to show that any detriment will flow from pre-publication release.

  Information should not be withheld because of future publication unless there is a firm plan for publication within one year, and harm can be shown to flow from earlier disclosure (for example, loss of revenues from selling the information). Even where there is a publication date within one year, the information should be disclosed if there is a greater public interest in earlier disclosure.

3.10  Information given in confidence

  The Bill does not attempt to limit the scope of the public authorities' duties of confidence (clause 32). It provides that information is exempt if its disclosure "otherwise than under this Act" would be an actionable breach of confidence. We do not believe that an FOI Bill should rely on the existing laws of confidence.

  The laws of confidence arise in another context and are intended for a different purpose. For the most part they exist to protect employers and companies against others who breach contracts or abuse confidential relationships in order to profit unjustly or cause competitive harm. The laws of confidence start with a presumption that all information that the owner wishes to protect will remain confidential unless it is public property, public knowledge, easily accessible or trivial (Murray v. Yorkshire Fund Managers 1998 1 WLR CA 951)—and unless there is a clear public interest in disclosure. The onus is on the party advocating disclosure, or more usually defending against an action for breach of confidence, to show that it is in the public interest. The effect is that decisions about confidentiality are largely in the hands of the owner of the information unless challenged.

  This Bill, on the other hand, is meant to start with a presumption of disclosure, with the onus on the party opposing disclosure to show that there is a greater public interest in secrecy. It should, in these circumstances, not be left to the supplier to decide what information can be confidential.

  The Bill exempts information that "would constitute a breach of confidence actionable by another person". This is not an adequate test for the purposes of the Bill. Almost anyone can bring an action for almost anything. While a disclosure may be "actionable" as a possible breach of confidence, that is not to say the action would be successful. The laws of confidence are by no means clear enough to give force to such judgments, particularly when they are not likely to be made by experts in the laws of confidence. As one expert on disclosure in the public interest explains: "Although the courts have declared that there is a public interest exception to certain types of obligation to refrain from disclosing confidential information, the nature and scope of the exceptions are far from clear".[171]

  The Bill should not rely on inexperienced people in public authorities making judgments about how the laws of confidence might apply to a request for information. It should provide its own criteria for confidentiality. We suggest the following procedure:

    —  the Act should set out limited grounds for claiming confidentiality for FOI purposes;

    —  those supplying information should notify the public authority in writing when they supply it that they consider it to be confidential, the grounds for confidentiality, and what prejudice disclosure would cause;

    —  no public authority should be allowed to accept any information on any terms other than it is liable to disclosure under the Act; and

    —  public authorities should make clear that they are bound by the terms of the Act and not by the wishes of the supplier, but that the supplier will be given an opportunity to object should the authority intend to disclose information notified as confidential.

3.11  Commercially sensitive information

  Under the exemptions in clause 34, information can be refused on the grounds that it constitutes a trade secret or would prejudice commercial interests of any person, including the public authority. There is no attempt to define a trade secret or to limit the scope of prejudice to commercial interests. Trade secrets should be defined in the Bill. The definition should be a narrow one along the lines of the United States definition we cited in our recent paper on commercial confidentiality[172] (see ANNEX B for a list of the paper's recommendations).

  The Bill should define a trade secret as an "unpatented, secret, commercially valuable plan, formula, process or device that is used for the making, preparing, compounding or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort".

  The Bill should also make clear the sorts of information that will never constitute trade secrets, such as pricing and sales volume data, sources of supply, subcontractors' identities, rebates taken or given, preferential classes of customers, plans for expansion, tenders placed or made, and the content of and parties to current negotiation. Such information may, however, be deemed confidential on other grounds.

  Information meeting the criteria for a trade secret should be subject to the prejudice test and should still be disclosable in the public interest. For example, a member of the public wanting to hold government accountable for its decision-making might want to know what government knew about the formula for a particular cattle feed at various stages during the BSE crisis or the contents of cigarettes over a period of years when information was coming to light about the addictive effects of tobacco. He or she should be able to argue that even if such information qualifies as trade secrets, there is a greater public interest in disclosing it.

  This provision would make it unlikely that consumers would ever be able to discover the nature of contracts between public services and private contractors. Nor would they be able to gain very many insights into the contracting process. These are important aspects of accountability and a partnership between government and consumers.

  The Bill should require that tender documents for contracts with public bodies make clear that all contract prices or charges will be made publicly available once a tender has been accepted and the contract finalised. Tender documents should also be required to specify that details of unsuccessful tenders will be made available at the same time as the successful tender and contract.

3.12  Investigations

  The Bill contains blanket exemptions—apparently without time limit—on information relating to investigations. The apparently limitless restriction on important public safety information strikes at the heart of the relationship between government and consumers. It confounds accountable government. It keeps consumers from knowing whether failures of regulation have led to accidents and whether government is taking unacceptable risks with the safety of the public. In an age where trust in government and its scientific advisers is declining, consumers need to be able to understand how government makes decisions to license car ferries; or to approve the design of nuclear power stations or tunnels or roads; or how it sets minimum maintenance requirements for track and railway signals.

  In our view, there can be no justification for refusing the public information—except perhaps for a very short time—relating to investigations of the cause of accidents, the protection of people at work or the protection of those whose health or safety might depend on persons at work.

  The way government, regulators, or those acting on behalf of government conduct investigations into any aspect of health and safety, the findings of those investigations, whether or not government acts on the findings and the reasons should be disclosed as a matter of course unless there is a greater public interest in keeping them secret. Any denial of information should carry a clear time limit.

  In 25 (2) (a) (i), the Bill exempts information that has at any time been held for the purposes of any investigation into "whether a person has failed to comply with the law, or is responsible for any other improper conduct". Improper conduct is not defined. It might mean anything from professional misconduct to inadequate service, from gross negligence to minor maladministration. Would this rule out, for example, public access to evidence produced in a government investigation of conflicts of interest among members of scientific advisory committees? Would it rule out investigations relating to biased school admission procedures or inappropriate rationing of health care? Would it rule out investigations about lax purchasing procedures by a government department?

  "Improper conduct" needs either to be deleted or defined in a way that prevents this exemption from becoming a license to cover up a range of practices for which public authorities ought to be held to account.

3.13  Policy advice

  Clause 28 exempts information relating to the formulation or development of government policy that a "qualified person" would judge to cause prejudice to the effective conduct of public affairs. Prejudice might include inhibiting free and frank policy discussions or the collective responsibility of Ministers. This is a blanket exemption which makes no attempt to distinguish between the different kinds of information that may be used to formulate policy. The White Paper, for example, intended to make available analytical and background material on which decisions were based.

  The current consultation begins with a list of documents the Government has already made available. It contains many examples of the very type of information this exemption is intending to keep secret. This undifferentiated provision goes even further than the First Division Association of Civil Servants thinks is necessary, as Jonathan Baume made clear in his evidence to the Select Committee on 22 June 1999.

  We accept that not all workings of government can be made public. The need for confidentiality of policy advice needs to be balanced against the need to enable people to see how government makes decisions on its behalf.

  We would expect there to be very few limits on publication of advice given to Ministers by new bodies such as the Food Standards Agency.

  Policy advice should be broken down into different categories: for example, background report; factual evidence; advice to Ministers from civil servants; advice from political advisors; advice from advisory bodies; minutes of meetings. Each category should be subject to appropriate harm tests and a public interest override. What constitutes "advice" in this context should be defined.

  In all but a very narrow range of cases, where for example national security is at risk, the Commissioner should have the power to overturn, in the public interest, decisions to withhold information under this exemption.

3.14  Combining information

  Under clause 37, information that is not itself prejudicial can be refused if it could be combined with other information to cause prejudice. The other information need not be held by the public authority, need not be accessible at the time of the request, and need not be likely to become accessible in the future. We do not see the logic in taking preventive action against release of the preliminary information. It creates a large loophole through which almost anything could pass, not to mention making the Bill appear Kafka-esque. Exemptions based entirely on speculation have no place in freedom of information legislation and undermine its intent and the culture of openness.

  Clause 37 should be deleted. When information is requested that could be combined with information already in the public domain to cause harm, it can be subjected to the normal harm and public interests tests.

3.15  Protecting against self-incrimination

  Clause 44(7) provides that an authority is not required to provide information to the Commissioner that would expose it to proceedings for an offence other than an offence under the Bill. Thus an authority is afforded the same protection against self-incrimination as a person. We would take issue with that on two grounds. First of all, we do not believe a public authority either should or does enjoy the same protection as an individual. Second, if the authority is not a person, then it should have no right to confidentiality with regard to wrong-doing. There is much case law that establishes the principle that there is no confidence in iniquity (eg Initial Services Ltd v Putterill [1968] 1 QB 396; Gartside v Outram [1856] 26 LJ Ch 113).

  How would the proposal work? Suppose, for example, an applicant had concerns about racial bias in the way a public authority recruited and promoted employees. In dealing with the request, the public authority discovered that its procedures contravened the Race Relations Act. The authority might initially refuse the applicant's request on some other ground, perhaps commercial confidentiality. The applicant would then appeal to the Information Commissioner. When the Commissioner requested information from the public authority, it could refuse to provide information because of self-incrimination, though it is difficult to see that anyone would want to claim under this exemption. The very fact of claiming would itself be incriminating! As well as being unworkable, this provision encourages public authorities to protect wrong-doing by individuals they employ.

  The provision protecting public authorities against self-incrimination should be deleted from the act because it would create a precedent in law that would allow widespread cover-up of wrongdoing.

3.16  Confirming that information exists

  Most exemptions provide that "the duty to confirm or deny [that the information exists] does not arise in relation to information which is exempt information" (eg, clause 22(4)). This would make it very difficult if not impossible for an applicant to mount an effective appeal to the Commissioner against a public authority's decision that an exemption applies.

  A presumption of openness requires that applicants be told whether or not information exists even if they are not given access to it. The Bill should require that applicants be told as much about the existence of the information as possible without undermining the exemption. Evidence of undermining should be required.

3.17  Refusing requests for information

  Clause 15 requires a public authority, when refusing to disclose information, to "give the applicant notice stating that fact and specifying the exemption or exemptions in question".

  In addition to the information already specified, the Bill should require the decision-maker to tell the unsuccessful applicant:

    —  the reasons for refusal, including the nature of the prejudice that would occur;

    —  how long any exemption applies and how the applicant will know when it no longer applies;

    —  what the applicant should do after that period expires; and

    —  how to appeal against refusal, including whether the next step is to an internal review or to the Information Commissioner.

3.18  Adding exemptions

  Under clause 36, the Secretary of State may at any time make an order to modify existing exemptions to the Act or to create new exemptions. The new exemptions can be applied to requests made before they came into force, unless the information has already been disclosed. Before making new exemptions, the Secretary of State must consult the Commissioner.

  This provision is yet another example of the confused message this Bill conveys. Broadly, it means that should the many exemptions, both specific and free-ranging, fail to prevent access to information, the Secretary of State will have the power to impose further obstacles retrospectively, without even consulting Parliament. We regard the public's right of access to information to be too important to be able to be curtailed without the approval of the public's elected representatives.

  Any proposals by the Secretary of State to modify existing exemptions should require the approval of Parliament through a process of affirmative resolution. No exemption should apply retrospectively.

3.19  Help to apply and appeal

  Applications will need to be made in writing and to be fairly specific. Recent research reveals a low level of literacy among a significant portion of the population. Others may have special needs by virtue of physical disability or not having English as a first language. Research by the Institute of Education and MORI has estimated that almost half a million people whose first language is not English have little command of the English language. Overall, one in four of the sample could not:

    —  fill in their names and addresses;

    —  understand a simple notice;

    —  read their child's school timetable; or

    —  use a calendar.

  A recent report157 [173] by the Working Party on Improving Literacy and Numeracy, set up by David Blunkett, found that nearly one in five of the adult population have literacy skills below the standard norm expected of 11 year olds.

  There are many ways to help applicants in these circumstances. Some are used by the Data Protection Commissioner and the various Ombudsmen. They include telephone helplines, interactive forms on the internet, and simple instruction leaflets. Others[174] are:

    —  receiving complaints in person or by e-mail;

    —  dealing with complainants in their own language whenever possible and providing guidance leaflets in various languages;

    —  making home visits where necessary;

    —  providing someone to take information down by dictation;

    —  a typetalk system for people with hearing or speech impairments;

    —  using cassettes to communicate with blind complainants; and

    —  making complaint forms and guidance leaflets available in braille, and on computer disk.

  There is an appeal process that is several stages long: internal review, the Commissioner, a Tribunal, the High Court and, occasionally, the Court of Appeal and the House of Lords. Where a Commissioner may have been able to ensure equality of arms, the later stages are likely to favour the public authority. Its resources will be greater and the passage of time will further its cause while prejudicing the applicant's. If the Commissioner has ruled in favour of disclosure, then perhaps she could take the case to the Tribunal to defend her decision on behalf of the applicant if the public authority appeals against it.

  Applicants should be able to get help with applications and with appeals. The Secretary of State should devise and implement a strategy for making help available in various forms and locations.

June 1999

170    Taken from Section 22(2)(c) of the Food Standards Bill 1999. Back

171   Yvonne Cripps, The Legal Implications of Disclosure in the Public Interest, ESC Publishing, 1986, p.14. Back

172   Commercial Confidentiality: a new definition for a Freedom of Information Act, NCC, 1998, PD 48/98 Back

173    Fresh Start: Improving Literacy and Numeracy, DfEE, 1999. Back

174    A-Z of Ombudsmen, National Consumer Council, 1997. Back

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Prepared 16 August 1999