Select Committee on Public Administration Memoranda



Purpose clause

  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 159.[175]

Harm tests

  Any test to justify secrecy should require evidence that prejudice leading to identifiable harm or damage is likely to 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.

Class-based approach

  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.

Confirmation of the existence of information

  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.

Time limits

  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. There should be a standard time limit of two years, with public authorities or applicants able to request a variation, provided good reasons are provided.

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

Help with applications and appeals

  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.


Clause 1

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

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

Clause 2

  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 be covered.

Clause 6

  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.

Clause 14 Discretionary Disclosures

  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 by the Secretary of State or the Information Commissioner 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.

  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.

Clause 15 Refusal of request

  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.

Clause 17 Future publication

  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.

Clause 25 Investigations

  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, and 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.

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

Clause 28 Policy Advice

  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 a risk, the Commissioner should have the power to overturn, in the public interest, decisions to withhold information under this exemption.

Clause 32 Information provided in confidence

  The Bill should not rely on inexperienced people in public authorities making judgements 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 (or accompanying guidance or a Code of Practice) 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.

    —  the Act provide that no public authority is 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.

Clause 34 Commercial interests

  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.

  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.

Clause 36 Power to confer additional exemptions

  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 be retrospective.

Clause 37 Effects of disclosure

  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.

Clause 44 Enforcement notices

  The provision in (7) 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.

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

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Prepared 16 August 1999