Select Committee on Public Administration Memoranda


MEMORANDUM 17

Submitted by Professor Patrick Birkinshaw, Director, and Nicholas Parry, Lecturer,The University of Hull Law School

FROM A WHITE PAPER TO A BILL

  The path to freedom of information in the United Kingdom has been a long and winding one. Well over thirty years since the Americans introduced the first of various laws on access rights to information and meetings, the British Government has produced its first Bill on FOI. [188]There has been numerous Private Members' Bills which Labour when previously in power and while in opposition continually supported. [189]The Major Government produced a Code of Practice on Open Government[190] which is still in operation and which in fact seems likely to be operational for several years. This Code covers bodies within the jurisdiction of the Parliamentary Commissioner for Administration (PCA). [191]Local Government and health authorities and trusts have their own guidance and codes.

  The Code has been praised for helping to introduce greater openness into the operations of government and, in spite of some criticisms, for making officials less defensive about access to information requests. It remained, however, an administrative code, and had serious shortcomings in its design and contents. Many of these deficiencies were highlighted in the Government's White Paper on open government which was published in December 1997. [192]The White Paper was widely praised for adopting a radical departure from the traditions of secrecy and defensiveness that had characterised the practice of British government.

  Much has been made of the fact that from Neil Kinnock's promise before the 1992 General Election that a FOI Act would be among the first legislation of an incoming Labour Government, to Tony Blair's promise that a FOIA would be a central component of a new constitution fit for a new millennium, there appears to have been a considerable compromise. It was a White Paper (WP), as observed above, and not a Bill that was published in the first session of the New Labour Government; publication of a Bill slipped back to May 1999. The Bill, which was published with a Consultation Document and an explanatory text will be subject to pre-presentation scrutiny by the Select Committee on Public Administration before being formally presented to Parliament, one hopes for the third session under Blair's Government. However, major provisions still have to be finalised including the coverage of the Westminster Parliament and details under the Public Records legislation. This Bill, or most of its provisions, does not have to come into force for five years from the date of the completion of its passage through Parliament. Although the WP was very green at the edges, and did nothing to allay anxieties about the relationship between access to information and privacy protection, [193]it was generally very liberal in its content. There were fears that the longer the delay in producing legislation, the more cautious the Government would become as it experienced the usual leaks and information disclosures which caused it maximum embarrassment. Particularly affected were the Foreign Secretary, the Trade and Industry Secretary, the Prime Minister and, conspicuously, the Home Secretary who suffered a series of difficulties over the premature disclosure and then wrongful publication of sensitive facts in the Stephen Lawrence inquiry. [194] Responsibility for the Bill had in fact been transferred to the Home Office and had been taken away from the Cabinet Office in the summer of 1998 when the Minister who had inspired the liberal contents of the WP was sacked.

  Generally the Bill is faithful to many of the Government's statements on its legislative plans for Freedom of Information, but there are serious deviations. There will be access to information, a term which is broadly defined and includes records. The Bill makes provision for the automatic disclosure of certain kinds of information by public authorities under publication schemes. A person requesting information has a right to be informed by a public authority whether it holds information of the description specified in the request. If so, the information must be communicated to the requester, subject to various conditions concerning fees, assistance in identifying information requested and other matters (see below). Public authorities that will be covered by the FOIA are scheduled in the Bill and this comprises a very wide list along the lines set out by the WP with some modifications. Bodies scheduled in a particular capacity are only subject to access requests in that capacity. The Secretary of State is given wide powers to designate "public authorities" in order to add to the scheduled bodies and this clearly will include a power to include private bodies within the definition, as stated in the WP, although the designation may be restricted to certain "functions" of such bodies, ie those which fulfil a public as opposed to a private purpose. Those under contract with public bodies to provide a service which is a function of the public authority may also be designated. In such a case the FOI provisions will only apply to functions covering public service and not coincidental ones. The Bill incorporates provisions on public records, although when the Bill was published these provisions remained incomplete.[195] Provision is made to repeal or amend statutory prohibitions on disclosing information.

  Crucially, the Bill has dropped several of the exclusions outlined for categories of information in the WP making them exemptions. Critically, this covers information relating to the criminal investigation process. Excluded information is totally outside the operation of the Bill—the Bill has no relevance to it whatsoever. Exempt information is in most cases subject to a public interest test: although notionally exempt the public interest in being disclosed must be considered by the public authority. Public bodies, including designated bodies, will have to consider the public interest in disclosing information even though the information is exempt. A good deal was made of the public interest test in the WP—the balancing that will have to take place between the public interest in disclosure and the public interest in preventing a harm to an identified interest. Interestingly, the Major Code contained a clear public interest override where a harm test existed in considering whether to disclose information. The provisions under the Bill are not as full-bloodied as the override test in the Code (p5 para 2., 1997 ed) and disclosures under the public interest provision are referred to as discretionary. A balancing of competing public interests seems unavoidable in practice. It should also be recalled that the WP criticised the Code for its lack of clarity in relation to the concepts of "harm" and "public interest" which were addressed in making the appropriate balance. Furthermore, the Bill allows a public authority to consider the motives of the applicant and the use to which an applicant intends to put the information (see below).



  The exemptions as we detail below have increased significantly under the Bill from the WP. In the latter, exempting interests numbered seven (in the Code it is 15). Those now in the Bill number over 20 and cover areas such as: where compliance cost exceeds "appropriate limit" of expenditure for complying (ie, as defined in regulations but which will be £500), vexatious or repeated requests, information which is available to the public by other means (see below), information intended for future publication. These are not listed as exemptions but amount to exemptions. Information supplied by or covering the work of the security and intelligence services, GCHQ or the "special services", information required for national security (sse below), information prejudicing—or which would be likely to prejudice (a formula which is repeated where "prejudice" (see below) is present)—inter-governmental relationships in the UK, information whose disclosure would prejudice or be likely to prejudice defence, international relations and this would cover the EC and EU institutions where their own laws may be more restrictive than our access laws and so could take priority over information coming from or going to such bodies. Further exemptions cover the economy—this is a completely new exemption from the WP, information held for criminal investigations and proceedings, and also information held for civil or administrative proceedings under a statutory or prerogative power. This includes investigations "with a view to ascertaining the cause of an accident"[196] as well as a raft of other investigations concerning safety, breaches of the law and other improper conduct. Information otherwise relating to law enforcement—which is drafted in very wide terms—is afforded separate exemption (see below). Information relating to judicial functions or legal proceedings of courts and tribunals (though not administrative functions) is also exempt and, because it is not covered by the public interest test in clause 14, is arguably effectively excluded. [197]

  Information concerned with decision-making and policy formulation, and which is not restricted to central government, is exempt as is that information whose disclosure would endanger the health and safety of an individual or concerns deceased persons and would cause distress to living persons. Personal information is exempt (see below), as well as information provided in confidence, that covered by legal professional privilege, trade secrets and commercial interests. Conferral of honours by the Crown is exempt and so is that information whose disclosure is prohibited by any enactment, or a court order. This refers to specific items of information rather than general classes of information as under the Official Secrets Act. The latter legislation is concerned with unauthorised disclosures. The clause includes that which is "incompatible with" any Community "obligation". A Community obligation could be extremely broad, however. As noted below, there is a power to add to the exemptions by retrospective ministerial order.

  A Commissioner, as outlined in the WP, will have promotional and investigatory powers in order to assist in the creation of a more open culture in government and to deal with complaints. She may enforce "any of the requirements of Part I" of the Act and not simply those relating to access complaints by individuals. She (it will in fact be the Data Protection Commissioner, Elizabeth France) will approve publication schemes produced by public authorities which relate to the mandatory publication of information that they have to comply with. She may approve model schemes for classes of authority such as smaller bodies or schools, universities and not the typical governmental or regulatory bodies. The Governement, and they should be congratulated for this, has responded positively to several of the recommendations of the Select Committee on Public Administration including, as we noted above, the removal of the protection of criminal investigations from the excluded category to an exemption. [198]In this latter case, however, there is a sting in the tail.






  The Government has also followed the Committee's advice on the division of functions between the Data Protection and Information Acts. The WP revealed a great deal of confused thinking, which it has to be said Government members before the Select Committee did little to eradicate. [199]The WP envisaged a dual operation scheme involving both pieces of legislation and the co-operation of the Commissioners. The divisions in jurisdiction were far from clear and there was a pressing concern that the uncertainty might well promote privacy protection as a more important objective than access to information. Certainly in overseas jurisdictions there was evidence of a privacy regime dominating an access to information regime. [200]This conflict also featured in the Human Rights Act where special safeguards had to be written in to protect freedom of speech[201] and also in the Data Protection legislation to protect journalism, art etc. [202]What the Act does is to provide for only one Commissioner thereby eliminating potential and damaging clashes between different Commissioners taking opposing lines on areas within their jurisdiction. Furthermore, claims by data subjects to information about themselves will be made under the Data Protection Act (it does this by making such data exempt under the FOI Bill) whereas claims by others to information about someone else will be dealt with by the same Commissioner under the FOI Bill. Such claims will, where necessary, however, be subject to the principles and safeguards of the Data Protection Act. These latter points are now much clearer in principle although unavoidably technical as is evidenced for instance by the extension of "data" covered by the Bill to include "unstructured personal data" and the consequential exemptions from the Data Protection Act of such data. In the WP, personnel files of employees of public bodies were to be excluded from the FOIA. The Bill reduces them to an exemption from the provisions of the Data Protection Act. Making the Data Protection Commissioner the Information Commissioner does raise certain possible problems (see below).

  The Bill applies to Northern Ireland as well as England and Wales and although the accompanying Consultation Document says the Bill applies to Scotland, its application appears extremely limited. It appears to cover the Scottish Office and those scheduled bodies which have addresses in Scotland, eg the BBC, so that provision is made for an appeal to the Court of Session against the Tribunal's (below) decision involving such a body (cl 51(b)). Disquiet was expressed during examination of the WP that if FOI was a devolved as opposed to a reserved matter, unlike human rights which was a reserved matter, there was no guarantee that the new Scottish Parliament would actually legislate for access. The Bill does not apply to devolved bodies in Scotland, including the Edinburgh Parliament.

  Many of the details of administrative practice will be contained in a code under clause 38 setting out what the Secretary of State deems "desirable practice" for authorities to follow when discharging their functions under Part I. The Commissioner musts be consulted on its contents. If the contents of the Code are not complied with, the Commissioner may issue a Practice Recommendation. What happens if this is not followed is not clear: is it a matter for the Secretary of State applying political pressure or the Commissioner seeking judicial review; is it a matter for the Information Commissioner or maladministration for the Parliamentary Commissioner? This will cover crucial items such as advice to requesters, request transfers between authorities, consultation with parties whose interests are likely to be affected by a disclosure, contractual terms relating to the disclosure of information and complaints procedures for those who are unhappy about the way their complaint is dealt with. Even though the Code is neither primary or secondary legislation itself, this does not mean the courts will take no cognisance of its terms. [203]

  Fees may be charged and it is hoped that for "most applications" these will not exceed £10. Discretionary disclosures under clause 14 may involve larger fees. Fees may be waived in prescribed cases.

  It was mentioned above that the longer the delay in introducing FOI in the Government's term of office, the greater the risk that the more radical tinges of the WP would be diluted. This certainly appears to be the case. In what follows, the authors attempt to highlight major differences between the White Paper on Freedom of Information: Your Right to Know and the Bill as well as specific points which may be of interest.







POINTS OF SIGNIFICANT DEPARTURE FROM THE WP

Reduction in the "harm" test for refusing disclosure

  Some exemptions require no test of any damage whatsoever in order to be exempt. So information collected as a result of criminal or other investigations and consequential civil proceedings relating to law enforcement require no test of damage to withhold it. Also, information relating to the formulation and development of governmental policy is subject to no test of damage although information whose disclosure would interfere with the free and frank provision of advice, etc, can be withheld on the "reasonable opinion" of a qualified person.

  Where a damage test is required, the test in the Bill for exempting information is where its disclosure "prejudices" or is likely to prejudice particular interests rather than where its disclosure would cause "substantial harm" to interests as in the WP. This is a significant reduction from the WP in the test for refusing to disclose information making withholding information much easier. The WP stated that the test would be substantial harm to a variety of interests although in the case of policy-making simple harm would be the test. "Harm", "damage" and "prejudice" are basically the same we would submit, and to remove the qualifying "substantial" is deeply significant. The Home Secretary stated in the House of Commons that prejudices means "real, actual or of substance" and references could be made to his statement under Pepper v Hart for interpretation. [204]Home Office spokespersons correlated "prejudices" with "damages" in the Official Secrets Act 1989 and much of the wording in the OSA is borrowed or very close to that in the FOI Bill in several of the exemptions. The Select Committee has drawn attention to the undesirability of comparing access provisions with crimes relating to unauthorised disclosure[205] and it might appear unfortunate that the wording of the access provisions is so close to the laws punishing unauthorised disclosures. The fear was that too close an association with official secrecy would weaken the spirit and operation of the access laws. The Bill says nothing about liberalising the Official Secrets Act. The breadth of some of the provisions in the OSA could, arguably, be in breach of the European Convention on Human Rights. [206]

A new Tribunal

  A Tribunal has been added to hear appeals from the Commissioner. The Commissioner—resort to whom will involve no "additional cost"—is not the sole independent arbiter of disputes as in the WP and she cannot enforce disclosure of exempt information. In the WP she could make binding decisions which were enforceable via contempt proceedings where the authority refused to comply with the Commissioner's decision. Challenge to the Commissioner's decisions in the WP was via the High Court in a judicial review.




  The new Tribunal is empowered to allow an appeal where, inter alia, it would exercise its discretion differently to the Commissioner, ie on the merits. The tribunal can review findings of fact on which a Commissioner's notice is based as well as take appeal on points of law. These are copious grounds of appeal. Two of the members of the Tribunal are to be appointed by the Home Secretary, one each representing the interests of public authorities and access requesters respectively. The Chair will be appointed by the Lord Chancellor and will presumably be legally qualified. In fact a lawyer of considerable standing and experience would be required. A High Court judge with expertise in public law would be appropriate.

  From the tribunal there is to be a right of appeal on a point of law (judicial review—a "speedy process" was present in the WP as we saw) to the High Court and equivalent in other jurisdictions. Further appeal to the Court of Appeal and House of Lords will be possible.

  This could be a drawn out process and diminishes the importance of speed and effectiveness outlined in the WP. An additional stage of appeal has been added and will inevitably assist the public authority whose legal costs are met from the public purse and which has time on its side. Can a private party be guaranteed such support? Delay in disclosure can defeat the purpose of seeking information—this is not going to be a "hot news item" provision. Incidentally, could a Commissioner be empowered to take up a complainant's case on an appeal by an applicant for access if the Commissioner recommended in favour of disclosure but the authority refused to disclose? This is the situation in Canada, and could be of great assistance to the applicant.

Increase in exemptions

  The WP identified seven or so exempting interests. The Bill has upwards of 20 exemptions (see above). Part of this may be explained by the fact that unlike the WP which specified several exclusions, the exclusions in the Bill only cover the Security Service, Intelligence Service, GCHQ and the special forces—although other exemptions come close to an exclusion. The other exclusions in the WP (criminal investigation and public sector employee records as amended under the Data Protection Act which otherwise allows access to "unstructured" personal files) are brought into the exemptions. However, information relating to the legal proceedings of courts and tribunals is not subject to the public interest test in clause 14 and nor is information relating to the security and intelligence services. The "gateways", ie criteria on which access decision are made, and other provisions which relate to repeated and vexatious requests etc, are now grounds for refusing information.

  However, the exemptions themselves are further qualified in that the duty on public authorities under clause 8(1)(a) to inform applicants of whether the authority holds information of the description specified in the request is not operable for many of the exemptions where the information requested would itself constitute exempt information and its disclosure would therefore defeat the purpose of the exemption. This is because "information" is given a broad interpretation under the Bill whereas in some FOI provisions elsewhere it only covers "documents" broadly understood. Refusal to confirm or deny the existence of those documents is authorised where revealing their existence would undermine the exemption.

Adding to exemptions by Ministerial order

  Clause 36 provides a power to make additional exemptions by order—these may have retrospective effect. This is entirely new and was not present in the WP. It gives the Minister a considerable discretion which could be a de lege veto, again contrary to the WP. In deciding whether to make such an order (approved by positive resolution) the Secretary of State shall not make an order exempting information unless "it appears to him that the public interest in conferring the additional exemption outweighs the public interest in allowing public access to the information." (Clause 36(2)) This introduces a general public interest override against information disclosure in relation to exempted information. Would this in any way bind a particular decision involving access to the exempted information? Nothing in clause 36 overrides the duties on an official to exercise a specific discretion on the facts under clause 14, assuming the exemption was covered by clause 14. It might be added that section 38 Data Protection Act 1998 confers a similar Ministerial power to add to exemptions under that legislation. Delegated orders are judicially reviewable on substantive and procedural grounds. [207]While an attack on abuse of power or misleading the House is possible, the courts would require evidence of wildly excessive abuse given Parliament's role in approving the order. Successful challenge on review is in practice a non-starter. In rare cases, courts have investigated orders before approval has been given. [208]

The Policy-making exemption and Central Government

  In the WP, the Government appeared to indicate that the good and effective policy-making exemption would be likely to apply "particularly" to central government: "high level government records" of Cabinet or Ministerial level and policy advice to Ministers was the context in which it was envisaged this exemption operating. The section in the WP is given the heading, decision-making etc "in Government". The Government did subsequently develop its thinking to include all public bodies within this exemption. [209]This latter is the approach adopted in the Bill. The Minister may authorise officials etc in public authorities to take the appropriate decisions.




  The exemption protects disclosures which would or would be likely to undermine the conventions of collective responsibility, confidentiality of communications with Her Majesty or other members of the Royal Household, Privy Council proceedings or advice of the Law Officers. It also exempts disclosure which would, etc, inhibit the free and rank exchange of advice, or exchange of views for deliberation or would otherwise prejudice, etc, the effective conduct of public affairs. Under the WP, as we have seen, this information was protected by a more retentive test than all other exempt information—the test was a "harm" test not a substantial harm test. It aims to protect the policy-making and deliberative processes of government so that advisers will not feel inhibited either by being identified with a particular piece of advice or by being seen to disagree with the views of a Minister. It also seeks to prevent disclosures which could threaten policy initiative. One can appreciate the difficulties of government in a gold-fish bowl but several points will be made about the undesirable breadth of this exemption below.

Union of Data Protection and Information Commissioners and Tribunals

  The Information Commissioner and the Data Protection Commissioner are to be one and the same, as indeed are the Data Protection Tribunal and the Information Tribunal. The danger is that privacy factors will predominate over access rights reinforced by the fact that the DPC has concentrated on privacy protection as provided within terms of the data protection legislation. A similar point may be made about the Tribunal. Most of the DPC's work has involved regulation, promotion and licensing rather than taking up individuals' rights of access. The Information Commissioner's remit comes from a different angle—access for individuals and openness although she has her promotional features also. A fear that privacy may predominate over access to information has recently featured in other constitutional reforms as we have indicated. Where separate access and privacy regimes exist in other jurisdictions, privacy regimes have taken the dominant role, though not always, and much seems to depend upon force of personality. [210]

  On the other side, no-one can accuse the Commissioner of actually coming with pre-inclined views against access although in her evidence to the Committee she saw herself very much as the champion of privacy in relation to personal information. [211]Now her statutory remit will be broadened. The proposal has the benefit of addressing and removing the lack of clarity on this point revealed by the WP and highlighted by the Committee. Furthermore, the Bill has taken up the suggestion made by the Committee (HC 398-I (1997-98) paragraph 19) that access by data subjects to information about themselves is made under the DPA and access by applicants to personal information concerning others is made under the FOI Bill amending the DPA. The new bodies are also given the title of Information Commissioner and Tribunal, perhaps emphasising a point.



Third Party Rights

  The WP stated that further thought would have to be given to the question of third party rights, ie those affected by another's request for information, very often commercial information but it often includes personal information. This allows a procedure whereby third parties who "own" or are the subjects of the information are notified and may challenge applications or decisions to disclose information. Under clause 38(2)(c) such persons are to be consulted under the terms of the code of practice made by the Secretary of State. "Any party" may be joined on appeal to the Tribunal. This all appears a little jejeune. A third party is unlikely to be a complainant under the terms of the Bill to the Commissioner—they have not required information (clause 43(1)). Presumably they may however be a complainant re maladministration to the Parliamentary Commissioner for Administration via an MP but only apropos of those authorities covered by the PCA's legislation. They may seek to rely upon the law of confidentiality, but this may not prove satisfactory.

Classes and Contents of Documents

  The WP stated that it would only seek to protect the contents of documents and not classes of documents. This would align FOI policy with the change of position announced by the then Attorney General and Lord Chancellor following the Scott Report into the Iraq supergun affair. [212]The WP was itself ambivalent on this point. However, classes of documents are protected, eg clauses 16, 17, 18, 19, 25, 27, 28, 29, 32, 33, 34 and 35.

Ministerial vetos

  The WP stated that there would be no Ministerial certificates defeating the thrust of openness as there had been in previous Private Member's Bills. There will be the possibility of certificates under clauses 18 and 19 concerning security and intelligence services and national security. These certificates will be "conclusive evidence" of relevant items. They are subject, however, to an appeal to the tribunal.

Reponse times

  The response time is forty days in the Bill. The WP did not commit itself to any length so there is no obvious inconsistency but forty days is longer than any period identified in any comparable FOI regime that is set out in the WP. The Code response time is twenty days for "simple requests" and can be extended.

Enforcement

  The following is technical but important. The addition of the Tribunal has complicated the question of enforcement. Under the WP some of the operations of the Act establishing the Parliamentary Commissioner for Administration (1967) were borrowed so that while the Information Commissioner could make a decision instructing the public body to disclose information, enforcement would be via the courts by way of contempt where there was a refusal to comply with the Commissioner's decision. The analogy with the PCA was not quite appropriate because the latter only recommends and the contempt powers were there to protect the PCA from deliberate interference or obstruction in the course of his investigation.

  Under the Bill, the normal enforcement route will be after appeal to the Tribunal, where there is an appeal to the Tribunal. The Tribunal will presumably have powers to make a binding decision which will itself be subject to appeal to the courts.

  The Commissioner can make a decision notice in relation to disclosure under clause 8 and in relation to provisions under clauses 11, 14 and 15. Where information is covered by clause 14(2)—the clause dealing with discretionary decisions by the authority on disclosure of exempt information—it would appear that the Commissioner cannot make a decision requiring disclosure—she certainly cannot enforce such a decision. She is restricted to the correction of the process of decision-making by the authority. The Campaign for FOI believe that the Commissioner's role is basically that of checking that relevant factors have been considered. There is, in other words, no role for appraisal, balancing or judgement on the merits by the Commissioner. To the contrary, we believe that this power is not so restricted because the Commissioner will have wide access to the relevant information and records and will be able more easily to fathom how the decision was made and therefore will have ammunition to criticise it. Under clause 44, the Commissioner may serve the authority with an Information Notice. She should, in other words, have access to the relevant information as well as the decision record and the reasons for the decision—unlike the applicant. Will she have access to the records generated by the complaint—the internal correspondence? Although the Commissioner acts like a reviewing court in the above enquiry, she will have far more material to dig beneath the surface than will a reviewing court. The code should make it clear that the onus is on the authority to justify its decision to withhold information in all cases, especially to the "discretionary" information. Authorities should be required to give reasons for their decisions. In looking at the considerations on the public interest, and as the Commissioner is armed with the information itself, the authorities will of necessity have to explain their decisions. If explained satisfactorily, fine. But if the explanation is not justified by the evidence, or appears disproportionate and suggests a failure not only to consider relevant factors but a failure to give them proper weight, then this would reveal a fault in the decision-making process under clause 14(2) and the Commissioner may, by virtue of clause 45 which concerns Enforcement Notices, require the authority to make a decision in accordance with that section and allows the Commissioner to specify matters to which the public authority "must have regard in making that decision". Although the Commissioner cannot enforce disclosure ("may not require") surely the Commissioner may, we argue, express an opinion on the merits here effectively letting the authority know how they should decide? The Commissioner, to repeat, will have access to all relevant information and reasoning. Reviewing courts are rarely given this amount of ammunition. This is reinforced by the fact that on an appeal to the Tribunal the Commissioner's exercise of discretion may be overturned where she "ought to have exercised her discretion differently" (clause 50(1)(b)). This suggests considerable power in the Commissioner but of course much depends on how the Tribunal exercises its appellate powers. Furthermore, where there is a failure to act upon an enforcement notice by the authority, the Commissioner may certify the failure to the court which it can punish as a contempt (clause 46).


  It seems that contempt proceedings are unlikely to have any, or any significant, role in the enforcement unless there is no appeal and the authority does not comply with a decision or notice of the Commissioner. In this case would it not be better to give the Commissioner a power similar to the Northern Ireland Commissioner to seek an injunction to force a recalcitrant authority to comply in particular with decisions relating to clause 8 or clause 14? More generally, injunctions may be issued against Ministers in their official capacity. [213]Contempt seems to be confined in practice to those cases where, as with the PCA, there is obstruction or wilful interference with the Commissioner's powers and duties of investigation or, possibly, persistent refusal. Would these not be more appropriately dealt with by an injunction? [214]In 1967, it was thought that injunctions would not issue against officers of the Crown in their official capacity. Case law has changed this position. If an injunction is not complied with, then it becomes a matter of contempt. In M v Home Office, the Law Lords said that the courts would not enforce a finding of contempt against a Minister—for failing to comply with an injunction—but would leave enforcement to the political arena.

  As things stand, although under clause 45 the Commissioner cannot enforce disclosure to applicants of information, he can inform public bodies that they are not exercising their discretion correctly and instruct them to do so. Refusal to follow the Commissioner's instruction may lead to contempt proceedings but it would not be too difficult for an authority to find ways of circumventing this where they could rely on plausible and reasoned explanations: "We did consider etc but in our judgement . . .". As noted above, the Commissioner's own exercise of discretion may be challenged in the Tribunal: clause 50(1)(b).

Delay in FOI Act becoming effective

  "The long wait for the right to know is nearly over" declared the WP in its closing sentence. It could be as long as five years before the Bill becomes effective: clause 72(3). What Neil Kinnock declared as the first Bill a Labour Government would introduce and what Tony Blair said would be a central plank in a new constitution for the new millennium seems to have slipped in prominence. This seems an extraordinarily long implementation period. Even the Human Rights Act will be fully implemented within just over two years and in spite of the fact that hundreds of judges and Tribunal members would have to be educated and trained in human rights' provisions.

SOME GENERAL POINTS

Recorded information

  The first clause of the Bill states that the duty to disclose will only cover recorded information. This will not apply to unrecorded information. Arguably, the WP went further than this in that it covered information even in non-recorded form as did the code ie, opinion and advice may be disclosed (para 57 and 58 Guidance 1997 ed.).

Reasons for decisions

  The WP's promise to create a duty to provide reasons for decisions by bodies covered by the Bill appears in clause 6(3)(b) and seems a little diminished. This requirement is a central feature of an administrative regime operating under legal order[215] and many would argue that it requires greater positive emphasis as a primary duty in statute rather than a presence in a publication scheme. It is an increasingly important feature of EC law. [216]The duty should be one set out in statute although publication schemes would indicate why reasons were being given for different kinds of decision and could perhaps identify what the purpose of giving reasons was. [217]There is no provision in the Bill to give reasons to an unsuccessful applicant for information, beyond naming the exemption claimed (clauses 15(1) and (2)). Presumably, however, the Commissioner would expect reasoned and coherent answers to her enquiries when investigating complaints. The Guidance accompanying the 1997 Code certainly felt "that an explanation will normally be given" (para 65).








Requests have to be in writing

  As experience with Ombudsmen shows, this can be a prohibiting factor for the poorly educated etc, but it is difficult to see how this requirement can be avoided in FOI requests. The problem will be exacerbated where there are inadequate provisions to provide advice and assistance to requesters. The provisions on advice by authorities to applicants will be contained in a code of practice drawn up by the Secretary of State "which it will be desirable for them to follow" and the observance of which the Commissioner will be under a duty to promote. The Commissioner has power to make a practice recommendation but it is not clear how, if at all, it can be enforced (see below). It's all a bit pussy-footing.

Repeated Requests

  The clause deals with requests which have been complied with and which are repeated. These do not have to be processed where they are the same or substantially similar. What happens if the first request was only partially complied with or indeed not complied with?

Channelling FOI information requests to more expensive information access regimes

  Clause 16(2) allows for the practice criticised by the Canadian Commissioner[218] of channelling FOI requests to far more expensive statutory access or charging schemes thereby avoiding FOI provisions which will be reasonably cheap. There appears to be no safeguard to prevent abuse.

Purpose of seeking information and restricting use of information

  Clause 14(4)(b) is an unusual provision in FOI regimes. It forces the applicant to state the purpose for which access is claimed and why information is requested. How, or to what extent, will this be checked to prevent abuse? The authority may consider whether disclosure to the applicant would be in the public interest. Also clause 14(6) empowers the authority to impose restrictions on the use of information provided. Why should information disclosed in the public interest be so restricted? How will this be affected by Art 10 ECHR and the Human Rights Act 1998 (see eg section 12 of the latter)? If a newspaper wishes to publish information then surely the provisions of the Human Rights Act come into effect? These make court interim injunctions more difficult to obtain than at present where freedom of publication is involved and the court must specifically address various points. In the USA, motive on the part of an applicant is irrelevant although different charging scales are present for different classes or user. However, the English courts have taken motive into consideration in deciding whether to allow access to information under other statutory provisions. [219]

Appeals against Ministerial vetos

  Clauses 18(2) and 19(4) allow appeals to the Tribunal under clause 52 against Ministerial certificates which, in the first case certify that information covered by the certificate was supplied by or relates to the work of the Security and Intelligence services. [220]In the second situation the certificate certifies that exemptions are required for the purpose of safeguarding national security. Subject to appeal, these certificates are "conclusive evidence of the fact". In the first case, the Tribunal may rule that the information was not exempt because it was not supplied etc, as stated. In the second case, if the Tribunal finds that, "applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate" it may allow the appeal and quash the certificate. This repeats earlier provisions in statutes[221] but is not as full a legal challenge as it allowed under the ECHR or EU law to national security or allied grounds[222] where relevant rights are being denied.






The investigation and law enforcement provisions

  Clauses 25 and 26 seem in some cases excessively broad, indeed wildly so. Clause 25 protects information which has at any time been held for the purpose of criminal investigations for charges, or if charged, for ascertaining guilt. The second part of the section exempts information concerning investigations of a civil or administrative nature concerning, eg, professional misconduct, breaches of hygiene or environmental regulations such as noise and so on as well as information produced for the purpose of ascertaining the cause of an accident which is a lot more restricted than case law covering privileged documents relating to accidents. [223]The second part includes investigations relating to wrongdoing in charities and health and safety investigations. Overall, the breadth of this exemption is breathtaking and fulfils the Home Secretary's warning to the Select Committee that if this information were removed from the excluded category, the necessary exemption would be almost as impenetrable. It is much wider than the American equivalent and it has to be questioned why information about major mistakes in criminal investigations cannot be revealed as in the Stephen Lawrence inquiry or why we should not know the facts relating to an accident or a nuisance. The Home Secretary has not accepted the Macpherson Inquiry report's recommendation that there should be no class exemptions for police information and operational and administrative police information should only be withheld on grounds of "substantial harm".[224] Clause 26 relates to law enforcement and catches specific items of information not caught by clause 25 [225] as well as any "functions" of a public authority concerned with the civil side of its investigations under clause 25(2).

Policy advice etc information

  Clause 28(1)(a) exempts information relating to the formulation or development of government policy. The totality of this makes it truly an amazing exemption but the subsection then specifies various aspects of central government decision-making which are specifically protected, including communications between Ministers of the Crown particularly in Cabinet and Cabinet committee proceedings. [226]For safe measure, information of central government which is not caught by the above and information of other public authorities is protected under clause 28(3) if "in the reasonable opinion of a qualified person" disclosure:

    "would, or would be likely to, prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown,

    (b)  or would, or would be likely to inhibit—

(i)  the free and frank provision of advice, or

(ii)  the free and frank exchange of views for the purposes of deliberation, or

    (c)  would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

What of factual, scientific or technical advice? Can this not be revealed even before the decision is finalised? What of the post decisional stage and release of information? Can advice not then be released? Is collective responsibility so important, or indeed so religiously observed, that revealing differences after the decision is made would undermine good government? In the gestation period of the present Bill for instance, talk of a rift between the Lord Chancellor and the Home Secretary on the scope of the Bill was commonplace and seemingly well informed. Were Ministerial relations or Collective Responsibility in any way undermined? If not then what is so important about such communications or conventions that they are, absent discretionary disclosures, only appropriate for the Public Record Office?

  Under clause 28(3)(c) the exemption seems excessively broad. Under clause 28(3) the Government seems influenced by the New Zealand legislation but without any of the overriding public interest qualifications in that legislation. And furthermore, the exemption only applied to advice etc in the course of performance of a duty—and not where a duty was not being performed—or to protect advisers from improper harassment or pressure. The Select Committee had a good deal to say on these points in its enquiry into the WP. In its reply to the Committee's report, the Government stated that factual and background material may be made available under the general disclosure provisions as well as under the specific access provisions. "Wherever possible, however, the aim will be to publish information and analysis before final decisions are taken so that it can inform public discussion and debate of the policy options that are available." [227]The contents of the publication schemes and code on this and so many other items will be crucial but the position does not look promising.






  Under clause 34(2) "commercial confidentiality" is given a very wide protection. Much government business will now be conducted commercially. In its reply to the committee's report the government stated that public authorities will be required to justify their claim for this exemption; the onus is on them. [228]The Bill leaves this unclear (see below).

  Under clause 44 the Commissioner is given very wide powers of access to documents held by public authorities (save those bodies in the case of central government under Schedule 1 paras 2 and 4 (a) and (b) and that exempt under clause 18(1) and clause 19(1) and see Schedule 3 para 9 on legal professional privilege and note para 9(3)). But these powers do not include access where the furnishing of that information would lead to disclosure of an offence exposing the authority to a prosecution for that offence. How does the authority explain this refusal in a way that does not compromise its position? There could be very adverse consequences against the public interest in this provision—eg protection or cover-up of serious wrongdoing in the service of the public. It really has to be questioned why this privilege is necessary. Nor does this privilege need to be present to comply with the ECHR. It refers to wrongdoing by the authority, not by an individual and why should information that reveals such wrongdoing be protected from the public? Would similar arguments apply against the Comptroller and Auditor General or PCA? Who is to determine whether this privilege is being abused? Certainly not the Commissioner.

Excluding rights of action

  No right of action is conferred by failure to comply with any duty under this Act. Would this protect negligence or malice on the authority's part? We would suggest not—only for breaches of statutory duties not accompanying common law duties. Actionable breaches of confidence brought about by disclosure would exempt information but the clause (32) then adds "otherwise than under this Act". What does this mean? That if information is disclosed under the Bill, then even though confidential its release is not actionable? It can, however, be the subject of an exemption. It may, however, be released on public interest grounds and this seems to be what is meant by "otherwise . . .". But what if the discretion under clause 14 was improperly exercised and disclosure was not justified? Is this a duty under the Act or a more general duty to exercise discretion in accordance with the law? We know that statutory discretion must be exercised according to the true statutory purpose and in order to fulfil statutory objectives and of course reasonably and not irrationally. The law requires this. [229]What furthermore if information of a confidential nature is released negligently? Surely negligence is a breach of duty arising independently of the statute?

Recommendations as to good practice

  Should the Commissioner not be empowered to carry out an audit of a public authority's practices in relation to FOI rather than have to seek its consent: clause 40(4). In the event of non-compliance with the codes of practice or their own publication schemes, the Commissioner may issue a "practice recommendation". Where recommendations are not complied with no means of enforcement are mentioned. Could the Commissioner seek mandamus in the High Court? Is this not an appropriate matter to refer to the Public Administration Committee as recommended in its report on the WP? More generally, what is to be the role of the Committee in relation to the Commissioner? The Committee made recommendations in its report on the WP on this point. [230]

The Onus of Proof

  On one vital and practical point, the position under the Bill is not clear. Where does the onus of justification or proof fall under the Act—on the public authority in refusing information; on the applicant; on the Commissioner? It is not clear although it does seem to shift. What is required is a clear commitment to a right to information subject to exemptions which the authority has to justify. This could perhaps be in a purpose clause which sets out clearly the duty of public authorities to advance open government. No such clause presently exists.

CONCLUSION

  The breath of fresh air that the WP introduced into British public life has dissipated. After two years in office and numerous embarrassing disclosures of information concerning government and Ministers a sombre note of caution, even restraint and censure, has seized the Ministerial psyche. This is apparent in the enormous width of the exemptions, and the power to add retrospectively to exemptions—after an awkward or embarrassing request perhaps? Jack Straw's intentions may be honest and honourable if defensive, but what of his successors? As was once expressed to one of the authors by an official in the Pentagon, the reason why proper FOI and privacy laws were necessary was not because of the people in office now, but because of those unknown future holders of power whose trusteeship may be far from exemplary. One would expect exaggeration but it makes a telling point.

  One particular exemption is deeply worrying. Clause 37 allowing information which is not exempt under clauses 21(1), 22(1), 23(1), 24(1), 26(1), 28(3), 30 (1) and 34(2) to be withheld where, if added to other information which is not exempt and which may not even become publicly available it would then fall within those exemptions, displays defensiveness bordering on cynicism. [231]In the USA, such a provision, which is strictly controlled, only applies to intelligence information and possibly that which could reasonably (ie subject to objective criteria) prejudice law enforcement. The same limitations apply in the States to "refusal to deny or confirm" provisions. In the Bill they are of almost universal application. Clause 37 dramatically reveals the change in emphasis from the openness of the WP.

July 1999








188   Freedom of Information. Consultation on Draft Legislation. Cm 4355 (Home Office). Back

189   See Birkinshaw, P and Parkin, A "Freedom of Information" in Constitutional Reform eds Blackburn, R and Plant, R (1999). Back

190   Open Government (2nd ed, 1997) and accompanying Guidance on Interpretation. Back

191   The Code is taped on to his governing Act but is non-statutory. See the PCA's Access to Official Information HC 804 (1997-98) and Selected Cases Access to Official Information HC5 (1998-99). Back

192   Your Right to Know Cm 3818. The WP was subjected to detailed scrutiny by the House of Commons Select Committee on Public Administration: HC 398 I&II (1997-98) and the Government Reply HC 1020 (1997-98). Back

193   This was subject to a great deal of criticism in the Select Committee. Back

194   Cm 4262 I&II (revised). Identities and addresses of witnesses had been revealed in the original report. Back

195    Part VI of the Bill refers to "Historical Records" ie those in existence 30 years after their creation. Certain exemptions are removed after 30 years, 75 and 100 years. Some appear to have no time limit. See also A McDonald "Archives and Open Government" in Open Government eds. A McDonald and G Terrill (1998). Under cl 39, the Lord Chancellor has to make a code of practice for authorities in relation to the holding of public records. Back

196   See note 207 below. Back

197   Presiding judges and trial judges presently exercise discretion as to what may be disclosed from trial dockets subject to appropriate safeguards. Under Major's Code, courts. tribunals and inquiries were not included, but were subject to "present practice", para 10. Back

198   HC 398 I (1997-98) pp. xxv et seq. Back

199    See the evidence of the Lord Chancellor: HC 398 I (1997-98) pp 84 et seq. Back

200    See R Hazell in A McDonald and G Terrill note 179 above. Back

201    S.12 Human Rights Act 1998. Back

202    S.32 Data Protection Act 1998. Back

203    It could be the basis of a legitimate expectation or it may constitute a relevant factor to consider when exercising discretion. Back

204    HC Debs 24 May 1999; Pepper v Hart [1993] 1 All ER 42 (HL). Back

205    HC 398 I (1997-98) paras 77 et seq. Back

206    As was submitted by former MI5 officer David Shayler's lawyers when they sought to persuade a French Court not to extradite Shayler to England for prosecution under the Official Secrets Act 1989. Extradition was refused. Back

207    See para 5-014 de Smith, Woolf and Jowell Judicial Review of Administrative Action (5th ed, 1995) and cases cited. Back

208    R v HM Treasury ex p Smedley [1985] QB 657. Back

209    HC 1020 (1997-98) para 29. Back

210    See Hazell note 184 above. Back

211    HC 398 I (1997-98) pp 56 et seq. Back

212    HC Debs Vol 287 col 949 and HL Debs Vol 576 col 1507 (Dec 18, 1996) and HC Debs Vol 297 col 616 (July 11, 1997). Back

213    M v Home Office [1993] 3 All ER 573 (HL). Back

214    Under clause 66, a criminal offence is created of altering documents etc to prevent disclosure. This is broader than the proposal in the WP. Back

215    English law has seen a significant development of a duty to give reasons for decisions. Back

216    Under Art 190 EC and UNECTEF v Heylens [1987] ECR 4097. Back

217    See the useful article by A Le Sueur "Legal Duties to Give Reasons" 1999 Current Legal Problems forthcoming. Back

218    AR of the Canadian Information Commissioner 1993-4, p 6. Back

219    R v Registrar General ex p Smith [1990] 2 All ER 170; Re Application pursuant to R 728 of the Insolvency Rules 1986 [1994] BCC 369. Back

220    Clause 18(3) defines the bodies covered. Back

221    Eg Sched 1 para 4(1) Security Service Act 1989 and cognate statutes. Back

222    ECHR: Tinnelly & Sons v UK 4 BHRC 393; ECJ: Johnstone v Chief Constable RUC [1986] 3 All ER 135; Svenska Jounalistforbundet Case T 174/95. Back

223    See eg, Re Barings plc [1998] 1 All ER 673. Back

224    See Cm 4262 Vol I para 46.32 and Recommendation 9 and Campaign for FOI Press Release 22 May, 1999, p 5. See also: R v Chief Constable of the West Midlands Police ex p Wiley [1994] 3 All ER 420 (HL). Back

225    Eg, prevention or detection of crime, the administration of justice, assessment etc of tax, immigration controls, maintenance of security and good order in prisons or other institution where persons are lawfully detained and "the exercise by any public authority of its functions for any of the purposes specified in section 25(2)(a)(i) to (viii)". Back

226    This is much stricter than the law relating to confidentiality in Crown or public service or Public Interest Immunity: Att-Gen v Jonathan Cape [1976] QB 752; Att-Gen v Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545; Burmah Oil v Bank of England [1980] AC 1090; Air Canada v Secretary of State for Trade (No 2) [1983] 2Ac 394. Back

227    Para 28 HC 1020 1997/98. Back

228    Para 27 HC 1020 1997/98. Back

229    Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 667. Back

230    HC 398 I (1997-98) para 90. Back

231    And see clause 19(3). Back


 
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