Select Committee on Public Administration Memoranda


MEMORANDUM 16

Submitted by Dr R S Baxter, Seredigin Consultants

PART II: EXEMPTIONS FROM DUTY IMPOSED BY SECTION 8

DECISION-MAKING AND POLICY FORMULATION (SECTION 28)

  1.  Public authorities must be allowed to think in private. This implies a degree of protection over information relating to decision-making and policy formulation. But it does not mean that all the information involved in policy formulation must be kept secret. Neither does it mean that all the information involved in decision-making must remain immune from disclosure after decisions are made. A balance needs to be found.

  2.  Over 20 years ago the then Prime Minister, James Callaghan, told the House that "when the Government make major policy studies, it will be our policy in future to publish as much as possible of the factual and analytical material which is used as the background to these studies".[176] The Head of the Home Civil Service, Lord Croham, then issued a Directive to all civil servants stating that ". . . when policy studies are being undertaken in future, the background material should as far as possible be written in a form which would permit it to be published . . .". [177]That rule has never been revoked.

  3.  On the contrary, greater openness has prevailed. The last Government's Code of Practice on Access to Government Information came into force in 1994. It exempted from release "information whose disclosure would harm the frankness and candour of internal discussion, including:

    —  proceedings of Cabinet and Cabinet committees;

    —  internal opinion, advice, recommendation, consultation and deliberation;

    —  projections and assumptions relating to internal policy analysis; analysis of alternative policy options and information relating to rejected policy options; and

    —  confidential communications between departments, public bodies and regulatory bodies".

It went further, and required the harm arising from disclosure to be weighed against the public interest in making the information available.





  4.  The Select Committee reviewed the working of the Code in 1996[178]. In its evidence, the Government stated that this exemption was intended to preserve freedom and candour of discussion within government, and accurate record keeping, to uphold collective responsibility and the political neutrality of the Civil Service. In its findings the Committee recommended that ". . . in all internal documents there should be a clear separation made in the drafting between factual analysis and research on the one hand, and sensitive policy advice on the other. In other words, drafting of all documents should be so undertaken as to allow maximum disclosure". It further recommended that the exemption be redrafted explicitly to exclude "factual analysis and research from those categories of information whose disclosure might harm the frankness and candour of internal discussion" and that the Guidance include a section "on the need to consider the possible release of internal discussion after the relevant decision has been taken".

  5.  The 1997 White Paper, Your Right to Know[179], developed this concept further and proposed a simple harm test. Factors which might prevent the disclosure of decision-making or policy advice would likely include "the maintenance of collective responsibility in government, the political impartiality of public officials, the importance of internal discussions and advice being able to take place on a free and frank basis, and the extent to which the relevant records or information relate to decisions still under consideration or publicly announced". It saw the harm test being applied to the contents, not the nature, of the information requested. And it expressed keenness to ensure that as much factual and background information as possible could be made publicly available.

  6.  The Nolan Committee on Standards in Public Life[180] has reinforced the message. It said that holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands. And the present Prime Minister, Tony Blair, in a speech three years ago[181] said that "the very fact of [an FOI Act's] introduction will signal a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country".

EXISTING STATUTES

  7.  There are already statutory rights to information in Britain. The 1992 enactment of the Environmental Information Regulations provides a freedom of information regime for environmental information, where the definition of what constitutes environmental information is extensive. The scope of the legislation is wide: it covers central and local government and many bodies under their control. There is an exemption covering policy advice. Under Regulation 4 in the original enactment, ". . . information relating [my emphasis] to the confidential deliberations of any [public authority] or to the contents of any internal communications . . ." could be withheld. Under the 1998 amendment the Government was forced by the European Commission[182] to narrow the exemption to ". . . information the disclosure of which . . . would affect the confidentiality of the deliberations of any [public authority] . . . [or] . . . would involve the supply of . . . any internal communication . . . ". Further modifications will be necessary to conform with the wording in the 1998 Åarhus Convention[183] which the UK signed. Under Article 4(3) a request may be refused if the disclosure would adversely affect ". . . the confidentiality of the proceeding of public authorities . . . taking into account the public interest served by disclosure . . .". The Convention goes further: under Article 6(6) public authorites must give access to ". . . all information relevant to the decision-making . . ." unless it can be withheld under Article 4.

  8.  Further developments have taken place at local government level. With the passing of the Local Government (Access to Information) Act in 1985, the public was given rights of access to council, committee and sub-committee meetings and to the papers and background material relating to these meetings. Some of this information might be withheld on grounds of "confidentiality" under Section 100 of the Local Government Act 1972 but this does not explicitly include information relating to decision-making or policy advice.

THE DRAFT BILL

  9.  In many respects Section 28 in the draft Bill winds the clock back, contradicts existing statutes, and compares unfavourably with similar legislation overseas. Subsection 1 exempts information held by a government department if it relates to (a) the formulation or development of policy, (b) Ministerial communications (including Cabinet or Cabinet committee proceedings), (c) Law Officers' advice, or (d) the operation of a Ministerial private office. This effectively exempts all policy-related information, including factual, scientific or technical advice, even if its disclosure would cause no harm. It also exempts the behaviour of Ministers and their special advisers from public scrutiny. Subsection 4 goes further and removes the duty to confirm or deny the holding of such information.

  10.  Subsection 3 exempts other information held by a public authority whose disclosure in the reasonable opinion of a qualified person would, or would be likely to, (a) prejudice collective Ministerial responsibility, (b) inhibit the free and frank provision of advice or exchange of views for the purposes of deliberations, or (c) prejudice the effective conduct of public affairs. Exercise of this exemption must be approved at the highest level: a Minister, Commissioner, Chief Executive, or delegated public authority or official (Subsection 5). This part of the exemption is more acceptable because of the inclusion of a harm (ie "prejudice", "inhibit") test.

  11.  It is for a public authority to exercise discretion when deciding whether to release exempt information. Section 14(1) allows this discretion to be extended to any ". . . information which to any extent relates to information which is . . . exempt". A remarkable extension. Section 14(3) places duty on the authority to have regard to all the circumstances of the case, including the public interest in disclosure. But pulic interest need not override harm as in the Code. The absence of a purpose clause in the Bill makes it easy to tilt the balance in favour of non-disclosure. Before making such a decision, the authority may demand further information from the applicant conerning his reasons for wanting the information and the intended use.

  12.  If it decided to release the information, the authority may levy a charge (section 14(7)) without first giving a "fee notice" and may impose conditions restricting the use or disclosure of the supplied information (section 14(6)). If it is decided not to release the information, the authority must give the applicant a notice (section 15(1)), not necessarily confirming or denying the holding of the requested information (section 28(4)), but indicating whether any discretion has been exercised in deciding not to disclose the information (section 15(4)). No duty is placed on the authority to give reasons for nondisclosure nor to advise the applicant about the right to complain to the Information Commissioner (section 43). These are unusual and unwelcome practices.

  13.  The Information Commissioner's powers are limited when dealing with exempted information. She cannot require a public authority to disclose such information but may only " . . . (a) require the authority to make a decision in accordance with [its discretionary powers], and (b) specify matters to which the public authority must have regard in making the decision." (section 45(2)). This is made more difficult because there is no purpose clause to facilitate interpretation. This is a serious weakness in the enforcement system. Under the Code, the Ombudsman may recommend disclosure in the public interest; under the draft Bill, the public interest consideration is a matter only for the public authority.

PRACTICAL EXPERIENCES

  14.  It is my experience from working in government for over 20 years and in a number of departments (Environment, Transport, Property Services Agency, Trade and Industry, Foreign Office and Cabinet Office) and bodies under their control, that the working culture has evolved into one of greater openness. The release of information relating to decision-making and policy formulation is more in line with the guidelines enunciated in the Croham Directive. My recent personal experiences are more to do with the disclosure of environmental information under a clear government policy and existing freedom of information legislation.

  15.  The Tenth Report of the Royal Commission on Environmental Pollution[184] argued for greater freedom of access to information. One of the recommendations in that 1984 Report was:

    ". . . that a guiding principle behind all legislative and administrative controls relating to environmental pollution should be a presumption in favour of unrestricted access for the public to information which the pollution control authorities obtain or receive by virtue of their statutory powers, with provision for secrecy only in those circumstances where a genuine case for it can be substantiated" (para 2.77).

  The Government accepted this recommendation and an inter-departmental working party of officials was appointed to consider how this could best be implemented. It reported in 1986 [185] and recommended changes that would be necessary in law, regulation and administrative guidance to meet the Royal Commission's recommendation. The Environmental Protection Act 1990 [186] implemented most of these and provided for public registers of information[187]. The Government was also active in Europe and became the driving force behind the adoption of EC Directive 90/313 on the freedom of access to information on the environment. This lead to the 1992 Environmental Information Regulations. The Government's continuing policy on openness was clearly stated in a White Paper, Our Common Inheritance.

  16.  In the first three years of the Environmental Information Regulations implementation, the Department of the Environment recorded only 32 refusals to supply requested information, only one of these was on grounds of policy advice. I can remember distinct cases where sensitive policy advice was released. In one case, a Cambridge University research team asked to see all the information relating to policy formulation and legislation arising from a number of sensitive environmental studies undertaken by the Royal Commission on Environmental Pollution. In spite of initial hesitancy by officials, all the files were shown to the researchers with the one proviso that government should be allowed to see their findings before publication to ensure that no classifed information was released. In a second case, an MP asked to see a Drinking Water Inspectorate report on a pollution accident. This raised difficult issues. Such reports tended to contain private and confidential comments from employees and other parties: releasing such invaluable information would likely jeopardise its future supply. The findings might also lead to policy changes and litigation. Furthermore, the disclosure of the requested report would set a precedent. Nevertheless, Ministers approved its release subject to the confidential components being separated and withheld. I do not believe that this degree of openness would prevail under the draft Bill.

  17.  A third case was, in my opinion, less open and satisfactory. The Environmental Information Regulations cover all "public administrations at national, regional and local level with responsibilities . . . relating to the environment" and "bodies with public responsibilities for the environment and under the control of public authorities". There were particular problems in defining "control" and "public responsibility for the environment", opinions varied amongst those consulted. A request was then made to two government "bodies" for sensitive policy-related information on radioactive waste management. To avoid its release, the Government decided that one was not under its control because, although its members were appointed by the Minister, it gave "independent advice" to government and the other, although publicly owned, had no "public responsibilities for the environment". Thus neither was judged to be within the scope of the Environmental Information Regulations and thus obliged to release information. This judgement was challenged but ultimately in questions of doubt it would be for the Courts to decide, including if necessary the European Court of Justice. Interestingly, the recent House of Lords Science & Technology Select Committee enquiry into the Management of Nuclear Waste was critical of such secrecy and argued, in their Third Report, that "Openness and transparency in decision-making are necessary in order to gain public trust".

  18.  Overseas experience is varied. The USA legislation exempts matters that are inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. The exemption protects the policy making process but it does not protect purely factual information related to the policy process. Neither does it protect documents once a decision has been made. The Canadian legislation excludes Cabinet papers (s69) and exempts internal deliberations (s21). The Information Commissioner recommended that coverage under the latter should be restricted to policy advice and minutes at the senior level, should exclude factual information used in routine decision-making, and that an injury test should be incorporated.

  19.  The Swedish legislation gives a right of access to official documents. There are rules determining when information becomes an "official document". In the case of documents drawn up by a public authority, they become "official" when they have been despatched. Drafts and proposals become official documents if and when they are filed after the matter is decided. This gives scope for the retention of policy-related information. In my opinion, it is a good model to follow. The French legislation gives a right of access to administrative documents. There are eight exceptions including the secrecy of the deliberations of the Government.

  20.  The Australian legislation (section 34) provides virtually automatic exemption for Cabinet documents, unless the documents in question are factual in nature. The exemption for internal working documents is less precise: current thinking is that internal documents which cast light on important policy options should be disclosed. Claims for exemption of internal documents on grounds of the need for frankness and candour have failed regularly. The New Zealand legislation calls for the "progressive" release of information. Previously, Cabinet papers were easily withheld but the ombudsman now insists upon selective release.

  21.  This submission shows that both current British practices and legislation, and foreign experiences are out of line with the draft Bill. All show a greater degree of openness than what is now proposed in the Government's Freedom of Information Bill. This cannot be good news.

June 1999





176   921 HC Debs, 5s, cc 26-7, 24 November 1976. Back

177   942 HC Debs, 5s, Written Answers, cc 691-4, 26 January 1978. Back

178   House of Commons (1966), Select Committee on the Parliamentary Commission for Administration, Second Report, Open Government, London: HMSO. Back

179   Cm 3818 (1997) Your Right to Know, London: The Stationery Office. Back

180   Cm 2850-1 (1995) First Report of the Committee on Standards in Public Life, London: HMSO. Back

181   At the Annual Awards Ceremony of the Campaign for Freedom of Information. Back

182   Because the Regulations serve to implement EC Directive 90/313. Back

183   Convention on Access to Information, Public Paticipation in Decision-making and Access to Justice in Environmental Matters, United Nations Economic Commission for Europe 1998. Back

184   Cm 9149 (1984) Royal Commission on Environmental Pollution, Tenth Report, Tackling Pollution-Experience and Prospects, London: HMSO ISBN 0-10-191490-3. Back

185   Public Access to Environmental Information, Pollution Paper No 23, London: HMSO, 1986, ISBN 0-11-751865-4. Back

186   Environmental Protection Act 1990, London: HMSO, 1990, ISBN 0-10-544390-5. Back

187   Integrated Pollution Control and air pollution (section 20) and the control of waste disposal (section 64), and public access to documents about radioactive wastes (Schedule 5 amending the Radioactive Substances Act 1960). The Control of Pesticides Regulation 1986 provides for the release of pesticide information to the public (regulation 8). For good measure, the Environmental Protection Act also provided for public registers of information about litter (section 95), genetically modified organisms (section 122), land which might be contaminated (section 143), deposits in and incineration at sea (section 147), and stray dogs (section 149). Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 16 August 1999