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;
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
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
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
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 Complaintshandling 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
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
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;
enabling members of the public to
make informed judgements about the way government carries out
its functions. 
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.
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  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 wouldsuch
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
The public interest is left as a vague concept.
For clarity and understanding, the White Paper thought it necessary
to define the public interest;
to apply a public interest test as
a "separate, identifiable step" (paras 3.17 to 3.18);
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
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
ensuring that the public obtains
value for money; and
avoidance of waste or misuse of public
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
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
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".
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
(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
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.
The Bill contains blanket exemptionsapparently
without time limiton 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
In our view, there can be no justification for
refusing the public informationexcept perhaps for a very
short timerelating 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
"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
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  1 QB 396; Gartside v Outram  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
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
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 addition to the information already specified,
the Bill should require the decision-maker to tell the unsuccessful
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
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
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
fill in their names and addresses;
understand a simple notice;
read their child's school timetable;
A recent report157 
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
receiving complaints in person or
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.
170 Taken from Section 22(2)(c) of the Food Standards
Bill 1999. Back
Yvonne Cripps, The Legal Implications of Disclosure in the
Public Interest, ESC Publishing, 1986, p.14. Back
Commercial Confidentiality: a new definition for a Freedom of
Information Act, NCC, 1998, PD 48/98 Back
Fresh Start: Improving Literacy and Numeracy, DfEE, 1999. Back
A-Z of Ombudsmen, National Consumer Council, 1997. Back