Select Committee on Public Administration Memoranda


MEMORANDUM 9

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 public—our 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 Queen's Speech.

  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 public sector.

  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 and policies.

  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 strengthened.

  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 FOR A MORE EFFECTIVE RIGHT TO KNOW

  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 of secrecy.

  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.

EXEMPTIONS

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 openness.

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 importance.

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 investigation—or the investigation of an investigation—merely 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 and honours

  There seems no real justification for a blanket exemption. Such an access right would not compromise personal privacy.

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.

EXEMPTIONS IF PREJUDICE CAUSED

  The Society of Editors supported the White Paper's substantial harm test—with 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 the request.

Clause 36: Power to confer additional exemptions by order

  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.

 FORMALITIES AND REFUSALS

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.

PUBLIC RECORDS

  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.

FREEDOM OF INFORMATION AND PERSONAL PRIVACY

  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.

ENFORCEMENT

  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.

TRAINING

  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.

CONCLUSION

  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.

July 1999





 
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