SUMMARY OF RECOMMENDATIONS GENERAL
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 159.
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 wouldsuch
as embarrassing the Government.
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
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.
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 needs to make clearer whether private
sector companies carrying out public functions or contracts but
who have no statutory or governmental or Ministerial connections
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
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 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
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
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
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
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
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
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