Submitted by Dr R S Baxter, Seredigin
PART II: EXEMPTIONS FROM DUTY IMPOSED BY SECTION
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".
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 . . .". 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rule has never been revoked.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
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.
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
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
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
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".
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
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
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
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.
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.
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
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
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 
implemented most of these and provided for public registers of
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
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
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.
176 921 HC Debs, 5s, cc 26-7, 24 November 1976. Back
942 HC Debs, 5s, Written Answers, cc 691-4, 26 January 1978. Back
House of Commons (1966), Select Committee on the Parliamentary
Commission for Administration, Second Report, Open Government,
London: HMSO. Back
Cm 3818 (1997) Your Right to Know, London: The Stationery
Cm 2850-1 (1995) First Report of the Committee on Standards
in Public Life, London: HMSO. Back
At the Annual Awards Ceremony of the Campaign for Freedom of Information. Back
Because the Regulations serve to implement EC Directive 90/313. Back
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
Cm 9149 (1984) Royal Commission on Environmental Pollution, Tenth
Report, Tackling Pollution-Experience and Prospects, London: HMSO
ISBN 0-10-191490-3. Back
Public Access to Environmental Information, Pollution Paper No
23, London: HMSO, 1986, ISBN 0-11-751865-4. Back
Environmental Protection Act 1990, London: HMSO, 1990, ISBN 0-10-544390-5. Back
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