Submitted by the Society of Editors
The Society of Editors believes that Freedom
of Information legislation should be comprehensive, coherent and
simple to use. We supported the stated aims of the Labour party
in opposition and welcomed the Government's promises of action
in order to empower the public and improve debate.
In essence, we believe Freedom of Information
legislation should be the catalyst to change from a culture of
secrecy to one of openness. Most official information should be
available for the public so long as there is not a sound, easily
understood, public interest reason for maintaining confidentiality.
We seek no special privileges for the media. Freedom of Information
legislation should be simple and cheap to use for ordinary members
of the publicour readers, listeners and viewers. It must
not become another smokescreen for government and public bodies
to hide behind. It must not become a vehicle of use only to academics
or well-resourced media organisations.
Legislation should promote the free flow of
official information on a daily basis to those people whose lives
it affects and who ultimately pay the bills. A new law has been
a long-term promise. We are concerned that there should be no
further delays and that legislation will be included in the next
The Society greatly regrets that we were unable
to extend the same welcome to the Governments's draft Freedom
of Information Bill as we gave to its radical White Paper. Both
the director and I have already publicly expressed our disappointment
with the draft proposals. Bob Satchwell, the Director, summarised
the Society's deep reservations about the proposals in his evidence
to the House of Commons Public Administration Select Committee
on 29 June.
A meeting has recently taken place with the
Home Secretary, at which national, regional and local newspaper
editors and senior public service broadcasting representatives
described the Bill's chief deficiencies, explained their concerns
about its implications for public and media. Matters for further
consideration and proposals for improvement were put forward.
The Society of Editors also supports the views of the Campaign
for Freedom of Information. We have also endorsed the campaign
for improvement of the Bill pursued by The Guardian.
The Society's members have long campaigned for
comprehensive and effective freedom of information legislation.
Our criticisms of the Bill are intended to highlight areas that
require revision so that effective FOI legislation ultimately
changes the perceived culture of secrecy. That so many others,
from a wide range of disparate groups and organisations, have
objected to the unnecessarily restrictive nature of the proposals
should convince the Government of the importance accorded to freedon
of information in the public's eyes. We are encouraged by the
report indications that the Government is prepared to review some
of the issues and clauses. It is however necessary for as dramatic
a reversal of the Government's plans to be repeated, between consultative
Bill and any Bill which is introduced into the Queen's Speech,
as apparently occurred between White Paper and draft Bill.
Only if the Bill is radically reformed is it
likely that the Government's aims as set out in the introduction
to the Consultation Paper could be achieved. The Society endorses
the stated objectives: that freedom of information should be viewed
as an essential component of the Government's programme to modernise
British politics; the aim to involve people more closely in decisions
which affect their lives; and that giving people access to information
is essential to that aim. The Society's members have individually
and collectively long shared and advocated the Government's stated
opinion that legislation is an essential step towards greater
openness and there needs to be a change in the culture of the
However, to achieve the change in culture, to
give people access to the information which they need in order
to lead their lives, requires comprehensive and effectively enforced
freedom of information legislation. The draft Bill does not provide
a strong enough framework for the citizen's right to know. The
Government's programme is at odds with its avowed intentions.
FOI and local government proposals, lack of
consultation and co-ordination on civil and criminal legislation
seem likely to combine into entrenched secrecy. The Society does
not believe this is intentional but their combination will shut
out the public from the decision-making arena, shut down access
to information and stifle critical analysis, instead of improving
the opportunity to have informed public participation.
The Society of Editors has asked that the Government
properly considers freedom of expression rights affected by a
range of its policies and initiatives. Promotion of freedom of
information needs to be addressed across its legislative initiatives
This might mean as narrow a matter as restoring
qualified privilege defences against libel claims to reports which
summarise the statements of designated officials (which ought
to include personnel and officeholders associated with bodies
bound by FOI legislation), more radical reform of the libel laws,
the practical aspects of facilitating information flow under the
Modernising Government initiative; IT and open justice issues;
Crown Copyright; fuller consideration of the relationship between
freedom of information, data protection and release of information
in the public interest as well as personal access rights, broader
issues such as Article 10 of the ECHR, protection of sources and
introduction of a public interest defence into official secrets
legislation. Regional and local media especially are particularly
concerned about the implications of the Government's proposals
for Local Government reform. Local Leadership, Local Choice and
authorities' current initiatives seem destined to remove the public's
rights of access to information, documents, meetings, involvement
in policy formulation and decisions which will affect their day
to day lives. Democratic accountability could be weakened not
The Society of Editors has raised these issues
and their interaction with freedom of expression in meetings with
The Rt Hon Jack Straw MP, The Home Secretary, Lord Williams, Minister
of State, the Home Office, George Howarth MP, Parliamentary Under-Secretary
of State, the Home Office, Hilary Armstrong MP, Minister for Local
Government and Housing, The Rt Hon Dr Jack Cunningham MP, the
Minister for the Cabinet Office, and Ms Janet Anderson MP, the
Parliamentary Under-Secretary of State, Department of Culture,
Media and Sport.
The Society's views are informed by our members'
daily experience in seeking information from the public sector
at every level. Regional and local newspapers and other media
have practical experience of the operation of local government
access to information rights and the effect of removal of such
statutory obligations when public funcions passed to other bodies
no longer subject to enforceable rights.
Their misgivings about the draft Bill are based
on their experience of authorities' ignorance of their statutory
duties of openness, or where there was a discretion to disclose,
their reliance upon the letter of the law to justify secrecy.
Editors are well aware that comprehensive legislation, backed
by statutory duties to assist as well as sanctions for non-disclosure
are necessary to change the culture of secrecy and maintain a
more open regime. Such statutory obligations help the officials
who wish to be more open, to enable them to make information requests
a priority and overcome the fear of wrongful disclosure.
The media would benefit from a better statutory
access regime which could be used to obtain information to support
daily reporting as well as in-depth investigation. The former
is more likely to benefit if a culture of openness is really encouraged.
More information might then automatically be made available in
user friendly form. Public bodies' information officers and all
officials who might deal with information requests as part of
their work might be encouraged to co-ordinate in a helpful way
to promote the provision of information to the public, rather
than seek to manage its dissemination or block enquiries.
The Society recognises that the media itself
ought to promote the benefits of any freedom of information regime.
Editors and journalists must be prepared to understand, explore
and appreciate the new rights and opportunities of FOI legislation
through their own use of it, or its use by those whose concerns
they report. The Society also recognises that editors have a responsibility
to explain the potential use of such rights to their readers and
audiences and how they could pursue them to find out about matters
that interest them. The Society believes that if official information
is made available freely, standards of reporting and therefore
public debate will be enhanced.
However, the Society considers that the establishment
of comprehensive and effective freedom of information legislation
can only be achieved by changes to the consultative draft. Furthermore,
the Society hopes that the draft Bill will be taken through to
legislation at the earliest opportunity. The major issues to be
addressed are set out below.
SECTION 8: NECESSITY
The public right to know must be paramount.
Information ought to be released promptly on request unless its
disclosure would cause actual, substantial and significant harm
and there was no further countervailing public interest preventing
its release. The right should give access to documents as well
as information. This right of public access ought to apply across
the widest range of public bodies and public functions. It should
be reinforced by statutory duties to assist in the provision of
information as well as sanctions.
Furthermore, introduction of dedicated FOI legislation
must not be used as an excuse to repeal more liberal existing
statutory rights to the access of information.
The Government is to be commended for the wide
range of public bodies and private bodies performing public functions,
which would be bound by freedom of information legislation. We
are pleased at the potential improvements which some of the Bill's
provisions will prima facie effect, particularly at local level.
The Government is aware of the public services'
broadcasters' concerns about disclosures that might conflict with
Article 10 rights and the free flow of information to the public.
However, the Society submits that the public
access right must be improved. The current proposals could be
easily exploited to evade access requests and reinforce a culture
The Bill needs fundamental revision. The categories
of exempt information need to be reduced. There is no need for
blanket exemptions, determined by wide-ranging definitions. Removal
of the blanket exemptions and the mere prejudice test are necessary.
Introduction of a substantial and actual harm test (or whatever
wording that would legally ensure that the disclosure would have
to cause substantive damage before its potential non-disclosure
could be assessed against public interest), and public interest
override would still enable each disclosure to be considered individually.
The nature of the harm could be assessed according to the circumstances.
This ought not to require investigation of the
reasons for request or the use to be made of it in order to justify
refusal, nor make disclosure conditional upon conditions attached
to its use. A harm test would ensure that any refusal was really
necessary, since it requires focus upon the actual consequences
of release, rather than attention merely being focused upon whether
the information requested fell within a particular definition
or description. A public interest override would then enable proper
regard to be paid to the public right to know.
Notwithstanding the offence under clause 66,
clause 8(6) might be subverted to justify the deletion or selective
release of information, at odds with the intention of the Act.
The procedure for discretionary disclosure if
material requested falls within an exempt category is helpful
in theory. However, to be useful in practice, it needs to be subject
to stronger enforcement procedures. Otherwise, it is more likely
to be exploited to withhold information. This stems from the power
to require reasons for the request and explanation of the purpose
to which it is to be put, before any decision to release is made,
and the power to impose restrictions upon its use if it is released.
Similarly, the second public interest test in respect of the release
to the particular requester might ostensibly be helpful, but it
may well be used to decide against release to that person, even
though it might be unconditionally released to another. The lack
of any enforcement powers to compel release of information fatally
weakens the usefulness of the provision.
Whilst treatment of all request as FOI requests
ought to be helpful, it will only achieve greater release of information
if the reasons for refusing to disclose information are reduced.
The media has its individual concerns that unwelcome or awkward
enquiries will be subjected to FOI timetables and exemptions refusals.
No doubt similarly potentially embarrassing requests from the
public could be similarly delayed.
Sections 16 and 17: Information accessible to
public by other means; information intended for future publication
The media is concerned that these clauses may
be exploited to deter journalistic enquiries. Clause 17 in particular
can be used to avoid having to release awkward information at
all or only to bolster the public authorities' news management.
This would be contrary to the public interest. Appeals procedures
are unlikely to be of practical help to the media who have been
denied information because it might be published at some indeterminate
date in the future. (No doubt individual journalists will have
a particular grievance if they suspect that an information request
has triggered a "managed" publication which not only
undermines their investigation but also justified the refusal
of their initial requests). The public authority's sanctioned
ability even to avoid confirming or denying unrecorded information
hardly fosters the public right to know or fosters a culture of
Sections 18-20: Information supplied by, or relating
to work of, bodies dealing with security matters; national security;
certificates under ss.18 and 19: supplementary provisions
The Society of Editors acknowledges that some
information ought not to be released to the public. However, even
in the security and intelligence service categories, it is difficult
to see why there should not be a requirement to disclose subject
to a substantial, actual harm test and public interest override,
in addition to any discretion to disclose.
Clause 19(3) is an absurdly wide provision to
justify refusal. The dangers of carefully planned or inadvertent
truly damaging incremental releases of information might justify
caution in certain circumstances. However, the refusal to release
information which does not relate to national security because
other information might exist, though not covered by FOI legislation
or other legislation, might never be accessible to the public,
never requested, never released seems absurd. The certification
process also appears to raise past problems about the use of public
interest immunity certificates to block disclosures of public
Section 25: Investigations and proceedings conducted
by public authorities
The Society of Editors adds its condemnation
to the many other organisations that have criticised this section.
We hope that the Government will indeed revise this section. Given
exemptions for legal professional privilege, we see no reason
for the blanket exclusion from FOI rights of information of such
interest to the public and of the public interest. There is little
point to a freedom of information legislation which sanctions
the cover-up of public bodies' investigations, public bodies'
investigations of other public bodies' investigations, causes
of events giving rise to investigations and subjects of investigations
relating to inter alia unlawful and improper behaviour,
involvement in civil legal actions, causes of accidents, professional
or managerial corporate fitness or incompetence, charity mismanagement
and misconduct, protection and recovery of charities' property,
health, safety and welfare at work issues, including risks to
third parties, criminal behaviour. There is a lack even of a duty
to confirm or deny the existence of any investigationor
the investigation of an investigationmerely because some
information might have been held pertaining to it. This clause
is fundamentally at odds with any public interest in the welfare
of the citizen or probity of public life.
Clause 27: Court records, etc
The interaction of criminal justice legislation,
civil justice proceedings, data protection and freedom of information
require integrated review to preserve public rights of access
to the courts and court documentation. This clause must not be
used to justify refusal to confirm even the existence of court
proceedings or anything relating to the litigation simply because
there is a reference to the subject matter within the court documentation.
The legal professional privilege exemption and laws of contempt
ought to provide adequate protection against any harmful disclosure.
Clause 28: Decision-making and policy formulation
The Society of Editors advocates retention of
the White Paper's approach. A substantial, significant harm test
would adequately protect policy advice that ought to be protected.
Factual information, background papers and other material ought
to be capable of release. Sub clauses 3 (b) and (c) provide far
too easy an excuse to justify the refusal of information by designated
officials. We have already expressed our grave concerns about
the Government's encouragement of the extension of Cabinet style
government to local government and its happy endorsement of the
loss of public rights of access to meetings and documents. It
seems even more pernicious to promote further obstacles to the
public right to know about decisions perhaps closely affecting
their lives and communities within freedom of information legislation.
The clause should be re-drafted to promote the free and frank
exchange of information with the public about policy making whilst
the public has the opportunity to influence policy decision taking.
Clause 29: Communications with Her Majesty, etc
There seems no real justification for a blanket
exemption. Such an access right would not compromise personal
Clause 30: Health and Safety
Care needs to be taken to safeguard against
the use of this clause to cover up potential embarrassment or
legal liability. It does not merely protect third parties. For
example, if the department held information that an unsafe system
of work or medical treatment of defence personnel, caused the
possibility of the development of a terminal illness to a potential
victim, or affect their children, it might be possible to put
forward the case that revelation of this information might affect
the mental state or cause stress which might aggravate the predisposition
to the condition, so as to be used to justify the release of any
information to any potential victim.
Clause 32: Information provided in confidence
We assume that public interest and other release
into the public domain will be permitted by this clause. It is
important that the extension of the law of confidence, whether
or not in combination with the exemption relating to commercial
confidentiality and this clause, do not provide an easy route
to justify refusal of release of information of public interest
or other information which would not cause any substantial, actual
harm if released.
The Society of Editors supported the White Paper's
substantial harm testwith the caveat that "substantial"
ought to mean something more that "not insubstantial"
for the purposes of any legal definition. The prejudice test appears
to be far weaker than the orginal proposal. We are encouraged
by reports that this might be reconsidered. In our view freedom
of information rights will only be effective if the public has
a stronger right to information in these areas of defence, international
relationships, economy, relationships betweeen UK devolved administrations,
law enforcement, and commercial interests.
The mere prejudice test could be used to justify
the failure to acknowledge the existence of information that might
reveal public bodies' impropriety and wrongdoing and justify its
concealment from the public. This potentially affects a wide range
of information. The exemptions become even more powerful a tool
to justify the refusal of information when used in combination
with one another, if the prejudice test is not strengthened.
Take the combination of prejudice on the grounds
of commercial confidentiality, economy and regional, national
or international relationships, or defence. That could cover up
local government corruption, arms deals scandals, defective military
equipment and faulty computer systems. Add in the blanket exemption
on policy advice and that provides further barriers to the public
right to know. A request might merely try to ascertain any governmental
or public body's role in any decision as to why an overseas commercial
firm decided to establish a base in one part of the UK rather
than another. Or why regional development aid went to one part
of the UK rather than another. Or the full reasons why one project
in a particular country received overseas aid.
The exemptions and mere prejudice test could
justify the refusal of information which might otherwise alert
the public and proper authorities to problems the type of which
have inspired major public inquiries relating to arms deals, police
conduct, overseas aid, food safety, all relating to information
of proper public interest. It would permit cover-up of local government
corruption, in respect of relationships with private contractors.
No doubt information which might lead to allegations of wrongdoing,
before or after they acquired the protection of clause 25, would
be considered prejudicial and justify refusal.
At another level, it could be exploited to justify
the refusal of information which might merely be politically embarrassing.
It might be considered refusal is justified on the basis that
the information might prejudice relationships between UK institutions
or cause slight diplomatic upset with another overseas institution,
or affect current trade negotiations, or simply because it may
not be the best time to release information which might then affect
other unrelated negotiations and discussions, which did fall within
the broad definitions.
In practice, a test of actual substantial and
significant harm to justify refusal, subject to a public interest
override to allow disclosure not withstanding such effects of
that dislcosure, ought to provide proportionate and adequate protection
for information which ought not to be released at the time of
Clause 36: Power to confer additional exemptions
The Society of Editors is concerned at the ability
of the Secretary of State to create more exemptions from the duty
to provide information. This too could be quickly exploited to
reduce the public right to know.
Clause 14: Discretionary disclosures
We have already set out above our fears that
the discretionary disclosure procedure could be used to refuse
information to and restrict its use. It will be another convenient
reason to justify refusal to local pressure group or press. Appeal
will be ineffective, as The Information Commissioner has no power
to require release of the information.
Clause 4: Request for information; Clause 38 and
Clause 39: Issues of Codes of Practice by the Secretary of State
and Lord Chancellor
Treatment of any request for information as
activating the FOI right and retrospective application of the
proposed legislation ought to be helpful. The enforcement procedures
will have to prove effective to ensure that this is not used in
an obstructive way to delay response to requests for information.
Similarly model and individual publication schemes and Codes of
Practice will have to be carefully drawn up and monitored to ensure
that adherence to their letter does not result in entrenchment
of secrecy rather than openness.
Editors would welcome the opportunity to be
involved in consultations on such schemes. However, the current
enforcement procedures appear to lack the power to make reluctant
authorities introduce and adhere to proper openness practices.
As referred to above, we continue to believe that the public should
have access rights to documents where requested or as appropriate,
as of right. The interpretation and application of the current
voluntary Code of Practice has demonstrated that this can be done
without harmful consequences. Conversely, we submit that access
rights should also extend to unrecorded information.
The problems relating to access to journalistic
material for media organisations falling within the legislation
must also be resolved.
Clause 9-12: Fees; time for compliance with request;
means by which communication to be made; exemption where cost
of compliance exceeds appropriate limit
The Society's submission on the White Paper
dealt with our fears that clauses such as 10, 12, and 13 might
be subverted to limit the release of information. Time limits
of 40 days merely to release a request for payment, further generous
time limits from date of payment, interpretation of "vexatious"
requests which might penalise the local pressure group or persistent
journalist, records management and cost schemes could all be used
to deter requests and justify refusals.
We note the disapplication of some exemptions.
Obviously, the extension of FOI Rights by requiring satisfaction
of stronger tests in order to justify refusal of information would
assist even greater release of historic records.
The Home Office will have received representations
from media organisations on the necessity of safeguard of Article
10 rights and protection of journalistic material.
The Society of Editors has also repeatedly highlighted
how third party privacy rights and data protection issues have
been used to justify the reduction of release of harmless information
to the public, (contrary to previous practice) while at the same
time safeguards have had to be instigated to protect against prior
restraint and other obstructions which would prevent the media
from legitimately releasing information of legitimate interest
to the public. We need to ensure that the journalistic exemptions
in the 1998 Act provide the necessary journalistic protection
and neither these nor journalistic protection under the Human
Rights Act 1998 are not inadvertently and perversely weakened
by the Government's approach to FOI legislation. We also need
to ensure that FOI legislation does not sanction the reduction
of information made available to the public.
As the data protection directive does not require
the protection of personal privacy to outweigh freedom of expression,
we question whether the correct balance has been achieved or whether
FOI will unnecessarily reinforce barriers to the free flow of
information, whether or not promoted by the media.
There is genuine concern that the combination
of the offices of Data Protection Commissioner and Information
Commissioner will simply re-inforce individual privacy rights
rather than champion freedom of information rights and the general
public right to know. This must be prevented.
The success of any freedom of information legislation
ultimately depends upon every individual's understanding of his
rights and their proper interpretation and implementation by every
person who might be involved in dealing with any stage of information
request. Editors would be very happy to participate in any consultations
or training programmes or publicity and education initiatives,
whether aimed at the media itself, or officials or the public.
The Society of Editors urges the Government
to undertake radical revision of its proposals. It must properly
deliver its promise of effective freedom of information legislation.