Submitted by Professor Robert Hazell,
Director, The Constitution Unit, University College London
The Government is concerned how freedom of information
(FOI) will work in practice. In assessing its practical impact
the UK can draw on the experience of four other Westminster systems
which have introduced FOI: Australia, Canada and New Zealand (which
all legislated in 1982), and Ireland (1997).
These four countries offer a range of tried
and tested models. This Briefing compares their FOI regimes with
the UK's draft Bill. In general the Bill is found to be restrictive
by international standards. The Government appears to have made
no systematic attempt to learn from overseas experience.
Open features of the draft Bill are its very
wide scope, covering all public bodies, as well as the health
service and local government; and granting full retrospective
access, to past as well as future records.
The Bill relies heavily on publication schemes
requiring public authorities to specify the information they will
publish as a matter of routine. Websites will make a huge difference
to the amount of information which can be routinely published.
The Bill would be strengthened by a purpose
clause, which has proved a useful aid to interpretation in Australia
and New Zealand; and by a statutory duty to help requesters in
identifying the information they want.
The exemption provisions differ from international
practice in their reliance on discretionary disclosure; in the
very broad exemptions for policy advice, information from investigations
and commercial information; and the lack of statutory protection
to give notice and consult with business before releasing commercial
information it has supplied to government.
The new test of prejudice or simple harm need
not be raised to "substantial harm", but should be qualified
by an overriding public interest test.
The Information Commissioner should have power
to order disclosure of exempt information where the public interest
requires it, and power to mediate as well as to issue formal decision
The interface between the freedom of information
and data protection regimes is excessively complicated and needs
rethinking. Access rights to personal information should be as
simple as possible for individuals to understand and for officials
1.1. The introduction of a Freedom of Information
Act is not a step into the unknown. The UK has the benefit of
five years' direct experience of the operation of the Code of
Practice on Access to Government Information, seven years' experience
of the Environmental Information Regulations 1992, and twelve
years' experience of Local Government (Access to Information)
Act 1985. It is also able to benefit from the 15 years' experience
of Australia, Canada and New Zealand, each of which enacted FOI
laws in 1982. And closer to home there is the recent experience
of Ireland, whose FOI Act 1997 came into force in April 1998.
1.2. These overseas models provide a good
international yardstick by which to measure the Government's Draft
Freedom of Information Bill published on 24 May. They have been
selected rather than countries like the USA or Sweden because
they operate within a Westminster constitution based on the Westminster
conventions of Ministerial accountability to Parliament, collective
Cabinet responsibility and an impartial and politically neutral
Civil Service. Their legislation operates within a very similar
political and administrative culture; it has stood the test of
time, and been adjusted in the light of experience. It offers
a range of tried and tested models which between them can be said
to represent sound international practice of an FOI regime within
a Westminster system. 
1.3. This Briefing is not a comprehensive
commentary on the Draft FOI Bill. It focuses mainly on those elements
which stand out by comparison with the FOI laws in these other
Westminster systems, and explains the main differences between
them. The Briefing highlights those aspects of the draft Bill
which are more open as well as those which are more restrictive
when judged by this international yardstick. Nevertheless the
overall conclusion is inescapable: this is in general a restrictive
Bill when judged by international standards. The main restrictive
the absence of a purpose clause,
as an aid to interpretation, and to support the Government's contention
that "the scales are weighed decisively in favour of openness".
the absence of a statutory duty to
advise and assist requesters.
exempt information to be disclosed
on a voluntary basis, not when the public interest requires it.
unusually restrictive class exemptions
for policy advice, information from investigations and commercial
the ability to add to the exemptions
1.4. The other general comment is that the
Government still does not fully understand the difference between
open government and freedom of information. Open government means
the Government publishing information largely for its own purposes:
information that the Government thinks we need to know or might
like to know. Freedom of information requires the Government to
disclose information which we decide for ourselves we want to
know. The two may not coincide because many FOI requests are made
in pursuit of private interests, and not the public interest.
Freedom of information is random, citizen-driven, and often hard
to predict. But significant elements in the draft Bill are based
on the paternalistic model of open government, with the Government
deciding what we need to know. Examples include the reliance on
proactive publication schemes (cll 6-7), on multiple codes of
practice (cll 38-41), the absence of a statutory right to reasons
for administrative decisions (cl 6(3)(b)), and control over the
disclosure of policy advice remaining in the hands of Ministers
(cl 28). The Bill would offer a clearer statutory framework if
the Government could more firmly disentangle the two approaches.
Overseas legislation used as the basis of comparison
1.5. Reference is made in the Briefing to
the following overseas legislation (abbreviated in brackets):
Freedom of Information Act 1982, as amended by the FOI Amendment
Acts in 1983, 1986 and 1991 and by the Privacy Act 1988 ("Aus").
Access to Information Act 1982 and Privacy Act 1982 ("Can").
New Zealand Official Information Act
1982, as amended by OIA Amendment Acts in 1983, 1987, and Privacy
Act 1993 and Privacy Amendment Act 1996 ("NZ").
Ireland Freedom of Information Act
In the UK reference is made to:
Open Government Code of Practice on Access to
Government Information 2nd ed 1997 ("the Code" and
The White Paper Your Right to Know: The Government's
Proposals for a Freedom of Information Act, Cm 3818, December
1997 ("the White Paper").
Range of agencies covered
2.1 The draft Bill has very wide scope in
terms of agencies to be covered. It goes far wider than the Code.
It applies to central government, the health service, local government,
schools, colleges and universities, and will apply to all public
bodies, and to private bodies exercising public functions. It
is comparable to the scope of the Irish and New Zealand legislation,
which was extended progressively to local government and the health
service. (The federal legislation in Australia and Canada is not
directly comparable, since the federal government has no jurisdiction
over large parts of the public service).
2.2 The draft Bill is fully retrospective,
granting access to past as well as future records. It is more
generous than Ireland, which only grants retrospective access
to personal records; and Australia, which initially was not retrospective.
Security and intelligence
2.3 The draft Bill excludes the Security
Service, the Secret Intelligence Service and Government Communications
Headquarters (GCHQ) from its operation (Sch 1 para 1); and exempts
as a class all information supplied by or covering the work of
the security and intelligence agencies and eight related bodies
(cl 18(3)). In this respect it is more restrictive than Canada
and New Zealand, where the Security Intelligence Services are
both subject to the legislation; but on a par with Australia,
where the security and intelligence service are both excluded.
3.1 This is a novel feature of the draft
Bill. Cl 6 requires all public authorities to specify the classes
of information they will publish as a matter of routine. Their
publication schemes must be approved by the Information Commissioner,
but the Bill is silent about the consequences of her disapproval;
she has no power to impose her views. The Commissioner may try
to raise everyone's game by approving model publication schemes
for a whole class of public authorities.
3.2 Publication schemes could prove to be
a powerful vehicle for greater openness, depending on how much
public authorities choose to include. Their effectiveness might
be judged by categories like the following:
publication of departmental manuals,
rules and internal guidance (which should already be available
under paragraph 3(ii) of the code);
routine publication of government
contracts (contract price, unit prices, performance standards);
publication of all information which
has been the subject of previous FOI requests.
Websites will make a huge difference to the
amount of information which can be routinely published. They offer
the possibility of disseminating large quantities of information
at much lower cost than conventional publication. Here the UK
does have an advantage over those countries which passed their
FOI laws in the early 1980s, simply because of the new technology.
The Canadians tried hard using conventional publication; but their
experience was that reading rooms, required under their legislation,
were hardly used. A number of government departments and public
authorities are already making good use of websites to publish
their departmental manuals, papers of advisory groups, inspection
Reasons for administrative decisions
3.3 A number of FOI laws contain a general
duty to give reasons: for the refusal of a grant or licence, the
denial of planning permission etc.
In the UK there is such a requirement in the Code, which commits
departments to give reasons for administrative decisions to those
affected (paragraph 3 (iii)).
This was reflected in the White Paper as one element in active
disclosure: it promised that public authorities would be required,
as a matter of course, to give reasons for administrative decisions
to individuals and companies affected by them (paragraph 2.18).
In the draft Bill this has become more muted: in preparing its
publication scheme a public authority is merely required "to
have regard to the public interest . . . in the publication of
reasons for decisions made by the authority" (cl 6(3)(b)).
It also appears to remove the right of individuals to require
a statement of reasons in their own case: the commentary on cl
6 explains that "Material made generally available in accordance
with a publication scheme would be exempt under clause 16 from
the right of access. As such, the authority would not be obliged
to respond to requests for it on an individual basis" (para
37 of the Consultation Document).
3.4 This is much weaker than Australia,
Ireland and New Zealand, where there is a general statutory right
to be given reasons. In Australia this is under the Administrative
Decisions (Judicial Review) Act 1977, which entitles an aggrieved
person to obtain a written statement of reasons. In New Zealand
(s23) and Ireland (s18) an individual or company is entitled to
a written statement of reasons, and of the findings on material
issues of fact.
Reasons for refusal of FOI requests
3.5 Separate from this is the specific issue
of a right to reasons for refusal of FOI requests, and notification
of the right to appeal. The draft Bill contains neither. Cl 15
merely provides that when a public authority is relying on an
exemption it must "give the applicant a notice stating that
fact and specifying the exemption". A refusal notice under
cl 15 will be very bald. Overseas legislation is much more helpful.
It requires that a requester is given the reasons for the refusal,
and the grounds in support (findings on material questions of
fact, particulars relating to the public interest); the name and
designation of the person dealing with the request; and information
about the requester's rights to review and appeal (Aus s 26, Ire
s 8, NZ s.19).
4.1 The draft Bill contains no purpose clause
or statement of its objectives. The Home Office Summary proclaims
that "overall the scales are weighed decisively in favour
But no such declaration is to be found in the Bill. Such a clause
has been a useful aid to interpretation in Australia and New Zealand,
where it has helped officials when applying exemptions and enabled
the appeal authorities to say to departments that in cases of
doubt they should lean in favour of disclosure.
4.2 The Australian s3 provides:
"3. (1) The object of this Act is
to extend as far as possible the right . . . to access to information
. . .
(2) It is the intention of the Parliament
that the provisions of this Act shall be interpreted....and any
discretions shall be exercised as far as possible so as to facilitate
and promote, promptly and at the lowest reasonable cost, the disclosure
The New Zealand ss4 and 5 provide:
"4. The purposes of this Act are . .
(a) To increase progressively the availability
of official information to the people of New Zealand in order
(i) To enable their more effective participation
in the making and administration of laws and policies; and
(ii) To promote the accountability of Ministers
of the Crown and their officials . . .
(b) To provide for proper access by each
person to official information relating to that person:
(c) To protect official information to the
extent consistent with the public interest and the preservation
of personal privacy.
5. The question whether any official information
is to be made available...shall be determined . . . in accordance
with the purposes of this Act and the principle that the information
shall be made available unless there are good reasons for withholding
4.3 In both countries the purpose of the
clause has been invoked by the appeal authorities. In New Zealand
the distinctive aim "to increase progressively the availability
of official information" (s4 (a)) has been successful used
by the Ombudsman over the years to keep the openness agenda moving
forward, so that policy papers which might not have been available
in the early years are now routinely released.
4.4 The Australian Law Reform Commission
has recommended that the Australian purpose clause should also
explain the underlying purpose of the access right as a basic
underpinning of democracy which "enables people to participate
in the policy and decision making processes of government, opens
the government's activities to scrutiny, discussion, review and
criticism and enhances the accountability of the Executive".
4.5. If a purpose clause is not acceptable
to the Government, then an alternative approach might be to have
a more expressive long title to the Bill. This is the approach
adopted in Ireland, where the long title to the Freedom of Act
1997 asserts its purpose as being ". . . to enable members
of the public to obtain access to the greatest extent possible,
consistent with the public interest and the right to privacy,
to information in the possession of public bodies. . .".
"Neither confirm nor deny"
4.6. The draft Bill gives requesters a right
"to be informed by the public authority whether it holds
information of the kind specified in the request" (cl 8(1)(a)).
This "duty to confirm or deny" does not apply in relation
to certain of the exemptions, where the mere disclosure of the
existence or non-existence of a record could itself betray an
important secret. The usual justification is law enforcement or
national security: a member of a terrorist group or a drugs smuggler
would find it useful to know whether or not the Security Service
had a file on him, even if the contents of the file remained wholly
protected. It is the practice of an agency like the New Zealand
Security and Intelligence Service neither to confirm nor deny
the existence of a personal file: a practice upheld by the New
4.7. What is unusual in the draft Bill is
the range of exemptions to which this response has been extended.
Public authorities will be allowed neither to confirm nor deny
the existence of information not merely in the case of intelligence
records (cl 18), law enforcement (cl 26), national security (cl
19), and defence (cl 21): but also in the case of premature publication
(cl 17), international relations (cl 22), intergovernmental relations
within the UK (cl 23), economic interests (cl 24), investigations
(cl 25), court records (cl 27), policy formulation (cl 28), communications
with the Sovereign (cl 29), health and safety (cl 30), personal
information (cl 31), information given in confidence (cl 32),
commercial information (cl 33), and information whose disclosure
is prohibited by other statutes (cl 35). In fact the only exemption
where such a response will not be permitted under the draft Bill
is in the case of legal professional privilege.
4.8 It is hard to believe that a "neither
confirm nor deny" response is needed across such a wide range.
If the Government nevertheless maintains its position, it would
be simpler in drafting terms to allow such a response across the
board, rather than specifically authorising it in the case of
each of 17 exemptions (cf Can AIA s10(2)).
5.1 All FOI legislation contains exemption
provisions to protect the effective working of government and
the interests of third parties. These can be summarised under
the headings of protecting national security and international
relations; the economic interests of government; free discussion
within government; and protecting third party information (personal
information about individuals, and commercial information supplied
by companies). Some play was made in press commentary on the draft
Bill about its 22 exemption provisions, compared with the 15 in
the Code of Practice and seven in the White Paper. In fact they
cover broadly the same sets of interests, with some simply being
more sub-divided than others. What is different in the draft Bill
is its treatment of the public interest; the very broad definition
of three exemption provisions, for policy advice, information
from investigations and commercial information; and the lack of
statutory protection to give notice and consult with third parties.
The public interest test
5.2 Most freedom of information laws allow
for the release of exempt information; and a number go further
in requiring the release of exempt information if the public interest
requires it (for example, if it discloses evidence of wrongdoing).
This overriding public interest test is found in Australia, New
Zealand and Ireland: not in relation to all the exemption provisions,
but the majority of them.
The effect of a public interest test is to prevent public authorities
from automatically withholding information just because it falls
within an exempt class; they are forced to weigh up the likely
consequences of disclosure, and to reach a balanced judgement
based on the circumstances of the particular case.
5.3 The draft Bill also permits the release
of exempt information, in cl 14 under the heading "Discretionary
disclosures". It differs from the public interest test in
overseas legislation in three respects:
it is not integrated into the exemptions
and the decision-making process, but appears as a second stage,
which may lead officials to consider disclosure on public interest
grounds as a discretionary afterthought;
disclosure is voluntary. Public authorities
may disclose exempt information if they feel like it, but not
otherwise. The Information Commissioner can ask them to think
again, but will have no power to order them to disclose information
in the public interest.
public authorities may ask for the
reasons behind the request, and any use which the requester proposes
to make of the information; and may impose conditions restricting
the use or disclosure of the information by the requester. This
is unknown in overseas legislation, where the motive of the requester
is deemed to be irrelevant;
and disclosure is free of conditions, and amounts to publication
to the world at large.
Policy advice and internal deliberation
5.4 All FOI laws contain an exemption for
internal deliberation and advice. It is known in the UK as the
exemption for policy advice, but it goes wider than that. Its
purpose is captured in cl 28, which exempts information whose
disclosure would inhibit the free and frank provision of advice;
the free and frank exchange of views; or otherwise prejudice the
effective conduct of public affairs. That is fairly standard:
to operate effectively governments must be allowed to think and
argue in private. But cl 28 has three unusual features:
the decision whether such information
is exempt is to be taken by Ministers. This is unprecedented by
international standards: and will send a strong signal to Whitehall
about Ministerial nervousness. FOI works best where it is "mainstreamed"
into other work, and FOI decisions are taken at working level:
with only the most difficult cases being referred up, but to more
senior officials, never to Ministers. UK Ministers are already
overloaded, and have more important things to do than consider
there is no exception for purely
factual material, or for statistical, technical or scientific
reports (cf Aus s36(5) and (6), Ire s 20(2)); and
the exemption extends to "the
operation of any Ministerial private office" (cl 28 (1)(d)).
(a) any reason that the requester gives
for the request;
(b) any belief or opinion as to what are
the reasons for the request shall be disregarded".
Information about investigations
5.5 Cl 25 of the draft Bill contains a very
wide exemption for information collected for the purposes of an
investigation. It covers investigations of all kinds. Cl 25(1)
covers criminal investigations; but cl 25(2) goes far wider, extending
to any investigation into improper conduct or legal wrongdoing;
Companies Act enquiries; accident enquiries; investigations to
protect health, safety and welfare at work; and enquiries into
misconduct or mismanagement of charities.
5.6 This class exemption is unprecedented,
both in its scope and duration. There is no equivalent in overseas
legislation. One of the purposes of the FOI is to allow individuals
and interest groups access to government information which will
enable them to make their own judgements about health hazards,
about the safety of public transport, the performance of public
utilities, the safety of foods and medicines. This is achieved
through granting access to inspectors' reports and the underlying
evidence collected during an investigation. The main exception
is that access will not necessarily be granted if it would prejudice
the conduct of future investigations, or an ongoing investigation
(under the general exemption for internal deliberation and the
effective conduct of an agency's operations, described above);
or if it might prejudice future legal proceedings. There is also
a specific exemption for information about investigative techniques:
"testing or auditing procedures or techniques" (Can
s 22), or information whose disclosure would "prejudice the
effectiveness of procedures or methods for the conduct of tests,
examinations or audits" (Aus s 40(1)(a) and (b)).
5.7 Cl 34 of the draft Bill protects trade
secrets, and information whose disclosure "would, or would
be likely to, prejudice the commercial interests of any person
(including the public authority holding it)". Tight protection
of trade secrets is standard; but the blanket protection for other
commercial information is not found elsewhere. All overseas legislation
contains an exemption to protect commercial information, but subject
to qualifications. The qualifications vary, but typically narrow
the exemption to information whose disclosure would place the
supplier at a competitive disadvantage, would cause material financial
loss, would prejudice the future supply of information, or would
prejudice the outcome of contractual negotiations (Aus s43, Can
s20, Ire s27, NZ s9(2)(b)). In addition Canada specifically provides
for disclosure of the results of product or environmental testing;
and information relating to public health, public safety or the
environment, if the public interest in disclosure clearly outweighs
in importance any financial loss or prejudice to the competitive
position of the supplier (AIA s20(2) and (6)).
Third party notification procedures
5.5 In the USA the 1966 FOI Act contained
no requirement on government to notify business suppliers of commercial
information before their information was released in response
to an FOI request. Companies had to resort to the courts in what
became known as "reverse FOI" lawsuits to win the right
to be notified and consulted: a right subsequently enshrined in
an Executive Order.
5.9 Other countries have learnt from the
American experience and the FOI laws provide that a department
or public authority which is minded to release commercial information
must first notify the business which supplied it (Aus s 27, Can
s 28, Ire s 29). The supplier can make representations to the
department, and supply evidence of the damage which would be caused
to its business by the disclosure. If these objections fail it
can appeal: in Australia to the Tribunal, in Canada to the Federal
Court, in Ireland to the Information Commissioner.
5.10 The draft Bill contains no statutory
duty to notify or consult the suppliers of commercial information
before disclosing it, and no right of appeal for third parties
to the Information Commissioner. Third party notification is to
be left to the Home Secretary's code of practice, which must include
provision for "consultation with persons to whom the information
requested relates or persons whose interests are likely to be
affected by the legislation" (cl 38 (2)(c)). Business is
likely to press for a statutory requirement, which would offer
surer protection. And business would be well advised to press
for a right of appeal to the Commissioner, which would be quicker
and cheaper than seeking an injunction from the courts. An injunction
would only lie for breach of confidence, which is a narrower and
separate ground from the exemption for commercial information;
and giving the courts a role in place of the Commissioner flies
in the face of the Woolf reforms encouraging the speedy, cheap
and informal resolution of disputes.
Creation of new exemptions
5.11 Cl 36 enables the Home Secretary to
create additional exemptions by order. These additional exemptions
may be used to block requests already in the pipeline (cl 36(4)).
There is no equivalent fallback provision in any of the overseas
legislation. Nor have they found the need in subsequent reviews
to create any new exemptions.
The harm test
5.12 The White Paper proposed a test of
substantial harm for all the exemptions except that for internal
deliberation and advice. In the draft Bill this has been downgraded
in two respects:
many of the exemptions are now class
exemptions, exempting whole categories of document regardless
of whether harm would be caused by disclosing the document in
question. There are now eight class exemptions, which are listed
in Table two of the Consultation Document accompanying the draft
the six harm-based exemptions are
now based upon a test of whether disclosure "would or would
be likely to prejudice" the interest in question, instead
of the White Paper test of substantial harm.
5.13 The number and range of class exemptions
is unusual. Most legislation has some class exemptions (only New
Zealand has none), but tries to keep them to a minimum. It does
this by specifying exceptions, to narrow the class as much as
possible; and by making them subject to an overriding public interest
test. For example, the exemption for policy advice in Australia
(s 36) and Ireland (s 20) does not apply to factual and statistical
material, scientific and technical reports etc, and can only be
invoked if disclosure would be contrary to the public interest
(for example, advice can more readily be released once a decision
has been made).
5.14 The new level of harm required is broadly
in line with overseas tests, none of which requires a test of
"substantial harm". In Australia the test is whether
harm "would or could reasonably be expected to" result.
In Canada the test is similarly one of "could reasonably
be expected to" or "would prejudice". Ireland uses
a variety of tests, depending on the individual exemption: "could
reasonably be expected to result", "could prejudice",
"would be likely to prejudice", "might be prejudicial".
New Zealand similarly uses "would be likely to prejudice",
"would be likely unreasonably to prejudice", "is
necessary to avoid prejudice" depending upon the context.
On the harm test it is the White Paper which did not reflect international
practice. The Government can point strongly to the overseas legislation
in support of its revised policy, and of its argument.
"that single omnibus substantial harm test
cannot work properly for the range of exemptions proposed: what
is "substantial" in relation to law enforcement, for
example, may not be in relation to international relations. We
consider therefore that the harm concerned must be capable of
being interpreted clearly in line with the exemption in question"
(para 35 of the Consultation Document).
This approach is borne out by overseas practice,
which uses a variety of tests depending upon the context of each
exemption. But part of the context overseas is that many of the
exemptions incorporate an overriding public interest test, which
raises the threshold again. Information can be withheld only if
disclosure would cause the harm in question, and it would be contrary
to the public interest. The draft Bill's test of prejudice or
simple harm would be a lot more acceptable if it were qualified
by an overriding public interest test, as it is in most of the
Partial access by deletion of Exempt material
5.15 The overseas legislation provides that
where a document contains exempt material which should not be
disclosed, the public authority should prepare a copy with the
exempt material deleted and disclose the remainder (Aus s 22,
Can s 25, Ire s 13, NZ s 17). There is no such provision in the
draft Bill. There needs to be: it is a useful reminder to officials
that the presence of exempt material does not exempt a whole document,
and that they should disclose as much as possible. The Government
may argue that because the draft Bill provides for access to information,
not documents, such a provision is unnecessary. But it has proved
useful in other FOI regimes which are similarly predicated on
access to information, such as New Zealand (s17).
6.1 There are two main features in the enforcement
machinery which are unusual by international standards. First,
its relative complexity. The draft Bill provides for a three tier
system of appeals: first to the Information Commissioner, then
to the Information Tribunal; and lastly on a point of law to the
High Court. Other countries have just two tiers. The three tiers
proposed here have been adopted from the data protection regime
(see cl 5); and the case for the Tribunal may be strengthened
by ECHR Article 6 (right to a hearing). But in other countries
the Commission or Commissioner can hold a formal hearing when
required, without convening a separate Tribunal. There is also
complexity in the procedures to be followed by the Commissioner,
who can issue decision notices (cl 43), information notices (cl
44), enforcement notices (cl 45) and practice recommendations
(cl 41). These very detailed procedures required of the Commissioner
must risk importing excessive legalism. It is not clear whether
in addition to these formal powers the Commissioner or her staff
will be able to mediate between parties. Mediation has proved
useful in other jurisdictions, disposing of a third or one half
of all cases. But if there is hesitation about how far a Commissioner
can go in encouraging settlements, it may be better to authorise
a mediation procedure in statute (eg Ontario's 1987 Act, s 51).
6.2 The other weakness is the Commissioner's
limited enforcement powers in respect of discretionary disclosures
under cl 14. The Commissioner has no power to order disclosure
of exempt information where in her view the public interest requires
it. She can merely ask the public authority to think again. This
would not matter if discretionary disclosure was seldom going
to be an issue. But the Government see it as central to the whole
FOI regime. In many if not most of the complaints which come to
the Information Commissioner discretionary disclosure will be
all that can be relied on. It will be extremely frustrating for
requesters and for the Commissioner if public authorities simply
go through the motions; but with no further action possible by
the Commissioner, balancing the public interest considerations
is a matter only for the public authority. This is a weaker arrangement
than exists in Australia, Ireland and New Zealand, where the enforcement
body can make decisions on public interest grounds. It is also
weaker than under the Code, where the Ombudsman can recommend
that exempt information should be disclosed in the public interest.
7.1 Access to personal files is likely to
be the main area of demand. In Australia and Canada 80 to 90 per
cent of all requests are for personal files, from individuals
wanting to see their pension, tax, immigration or social security
records. In Ireland just over half of all requests have been for
personal files. It is very important that these access rights
should be easy for requesters to understand and for civil servants
to administer. But cl 31 which regulates access to personal information
is one of the most impenetrable in the draft Bill. This is because
the Government wishes to channel all requests by individuals to
see their own files ("subject access") through the Data
Protection Act 1998. Cl 31 opens with a roadblock denying individuals
access to their own personal data which is going to be very difficult
for individuals to understand. It may be that most individuals
will not need to understand it, because they will simply ask to
see their file. But administrators will need to understand it,
and to understand whether to channel a request under FOI or data
And individuals will want to understand when their requests are
7.2 The interface between the Freedom of
Information Act and the Data Protection Act should not have to
be so complicated. Canada and New Zealand both have separate statutory
regimes for subject access (in their Privacy Acts) and for freedom
of information. They demonstrate some of the difficulties for
requesters and also for administrators of having dual statutory
regimes; but they are models of clarity by comparison with what
is proposed for the UK. One difficulty is that the Data Protection
Act 1988 was enacted with no regard to the forthcoming freedom
of information regime. Another is that the Government's main aim
was formal compliance with a directive which was itself poorly
drafted, the EC Data Protection Directive 95/46/EC, without any
desire to improve it or go any further. Given that the Data Protection
Act is itself now to be amended by the Freedom of Information
Bill it would be better to start afresh and rewrite both regimes,
with the primary purpose being that access rights should be as
simple as possible to administer and to understand.
8.1 The draft Bill will reform the rights
of access to public records. The 30 year rule will remain in place
as the date at which records are made available at the Public
Record Office but the terms on which access is provided will change.
The access provisions in the Public Records Act 1958 are to be
repealed and replaced with the FOI right, which will run beyond
30 years. Some exemptionsincluding those for policy advice
and inter-governmental relationswill cease to apply after
30 years, but most will remain in place.
8.2 The overseas FOI and archives statutes
do not provide a clear model to follow here. The Canadians have
one integrated right of access to information regardless of age,
whereas Australia and New Zealand have an access right to older
records in archives legislation which is distinct from their FOI
laws. The Australians prepared a new Archives Act 1983 in tandem
with their FOI legislation, producing an access regime for archives
users which has many of the features of modern public information
laws. The same could not be said of our own Public Records Act
1958, and now is the time to begin the task of producing archival
legislation for the new information environment.
8.3 If international experience does not
provide a clear benchmark against which to measure the public
records provisions of the draft Bill, there are two questions
we can ask of them: will it work and does it strengthen or weaken
access rights? The first question is difficult to answer because
the Bill deals with public records so briefly. We are told that
there is more to follow on public records and this must surely
be the case if we are to have a system which defines clearly the
roles and responsibilities of departments, the Public Record Office
and the Advisory Council on Public Records. The case for additional
clauses on these issuesor another code of practiceis
strong. In terms of access rights, the public will for the first
time have the right to appeal against the non-disclosure of public
records, but some of the exemptions which will remain in force
beyond 30 years seem to represent a step back on current practice.
The class exemptions for investigations (clause 25) and honours
(clause 29) do not seem to have parallels at present.
9.1 FOI is not cost-free. That was the main
weakness of the White Paper, which made no mention of resources.
The draft Bill and Consultation Document do address the issue,
estimating the cost of implementing the proposals in the Bill
to fall within the range of £90 million to £125 million
a year. This includes the costs of processing requests, of publication
schemes, training programmes, and the costs borne centrally by
the Home Office and Information Commissioner. The costs will be
spread across the public sector as a whole and are to be absorbed
within existing resources.
9.2 The bill contains some administrative
defences (eg cl 13, which offers protection against repeated or
vexatious requests), but in general it relies upon the charging
regime to deter unduly burdensome requests. The Government proposes
to set a ceiling of £500, to provide an upper limit on the
amount of resources to be devoted to dealing with an individual
request. But the Government also proposes only to charge for the
marginal cost of locating and disclosing the information; and
in general to charge no more than 10 per cent of that marginal
cost. Judging by overseas experience this may prove to be a fatal
flaw. Other countries have charged only for search time and copying,
and found that it represents only a fraction of the total cost.
In most FOI cases the bulk of administrative time is spent not
in locating the information, but in reviewing the file for possible
exemptions, and in consulting with other agencies and third parties.
This can be very time-consuming. Australia reckoned it spent 18
staff-hours per FOI request, and Canada divided this into an average
of 33 hours for requests for official information, and seven hours
for personal files.
9.3 The Government has allowed itself some
room for manoeuvre in that where disclosure is made under the
discretionary provisions in cl 14 the fee need not be subject
to the 10 per cent ceiling, but can be set at a reasonable level.
But this will only add to a requester's sense of aggravation if
he feels that the fee is discretionary as well as the disclosure.
Another lesson from overseas is that the fee structure must be
simple, universal and easy to administer. And it should charge
for all the time spent processing a request: for search, review,
consultation, preparation of documents and provision of access.
Australia is the only country which has learnt this lesson. In
1986 they introduced a robust new charging policy with a $30 application
fee, $15 p.h. search time, $20 p.h. review time. They also introduced
a $40 application fee for internal review, and a $200 fee for
appeals to the Tribunal.
10.1 Australia, Canada and Ireland all have
well documented FOI regimes. They publish annual reports of the
number of requests received, the number granted in whole or in
part, and the number refused. In Australia and Canada these figures
are published in respect of each agency, so that it is possible
to see which agencies receive the most requests, and how they
respond in terms of disclosure or refusal. In Australia they also
collect statistics about the usage of the different exemptions.
This is thanks to detailed reporting requirements written into
the legislation (Aus s 93), and in Canada to a requirement for
an annual report on the operation of FOI from the head of each
10.2 No such requirements are contained
in the draft Bill. If the legislation is to be properly monitored
there will need to be a statutory requirement to ensure that basic
data are collected, and the Home Office will need to ensure that
they are collected on a common basis (the data collected under
the Code were unsatisfactory for this reason). The reporting requirements
need not be as detailed and onerous as in Australia, but there
should be a statutory requirement to collect and publish each
year the number of requests received, the number granted in whole
or in part, and the number refused.
11.1 The UK could have learnt a lot from
overseas experience, as Ireland did when they prepared their Freedom
of Information Act 1997. What is striking in the draft Bill, particularly
by comparison with the Irish Act, is how little reference is made
to the overseas legislation. No systematic attempt has been made
to learn the lessons from Australia, Canada and New Zealand. Many
of the worst features are home grown. Equally striking, the draft
Bill fails to learn the central lesson that for ease of administration,
administrative defences are more important than exemption provisions.
This lesson has recently been reinforced by the Irish experience
in their first year.
11.2 In focusing so much on a restrictive
set of exemptions the draft Bill erects a Maginot line in the
wrong place. It assumes that these exemptions will protect the
workings of government; but they will not necessarily stem the
flow of requests. Because the draft Bill is light in terms of
administrative defences, and liberal in its charging regime, it
may lead to significant extra demands on resources, but frustration
and disillusionment in terms of what is disclosed. A tricky FOI
request can be very time-consuming in reviewing the files for
exempt material, whether the process eventually results in disclosure
of one-quarter or three-quarters of the information sought.
The Government risks having the worst of both worlds: the draft
Bill will raise expectations, generate a much higher volume of
requests than under the Code, but still leave most requesters
11.3 The signals in the draft Bill for public
servants are all consistently negative. In part this reflects
the policy stance; but it is exacerbated by the draftman's minimalist
approach. Draftsmen tend to think only in terms of legal meaning
and effect; but FOI acts need to convey more than that. That is
why a purpose clause is important, to signal strongly the need
for a change of culture. And it is why the key elements of the
new FOI regime all need to be in statute, and not relegated to
codes of practice. Even if the legal effect is essentially the
same, the political effect is different. Civil servants are very
astute in reading political messages; the messages in the draft
Bill will not encourage them to be more open. The general tenor
goes directly against all the messages in the Modernising Government
White Paper, which is meant to encourage civil servants to be
more outward looking, innovative and risk taking.
11.4 The other distressing feature of the
draft Bill is what a mess it has become. It is evident that the
difficult process of turning an aspirational White Paper into
a more realistic draft Bill degenerated into a downward spiral,
in which departments were allowed to plead for additional exemptions
and other special provisions with no one seriously holding the
ring. It would have been defensible for the government to decide
on a tighter regime than that set out in the White Paper. But
what should then have been an orderly retreat appears to have
become a rout. The end result is a Bill which contains no clear
or coherent scheme, and is tortuous and very difficult to understand.
The draft Bill purports to fulfil the White Paper proposals, but
so undermines them in the detail that the thread has got lost.
11.5 The crucial thing which has got lost
is a sense of the scheme as a whole, and of the balance between
freedom of information, privacy and the effective working of government.
That is why a purpose clause is so important to restore the balance.
Elizabeth France, the Data Protection Registrar, identified this
very clearly in her evidence to the Select Committee:
The draft Bill establishes how the data protection
and freedom of information regimes are to interact but it leaves
the balancing point to be established by those implementing, and
those overseeing, the regime . . . At present the Registrar believes
the balance favours data protection and privacy.
The Registrar's view is that it would be desirable
to have greater clarity about the intention of the freedom of
information legislation. The Government's stated approach is to
encourage openness . . . The draft Bill establishes a "general
right of access to information held by public authorities",
but there is nothing in the draft Bill itself which sets this
in a broader context or indicates that the Bill is an instrument
promoting disclosure. It does not incorporate the policy approach
that openness is to be encouraged.
11.6 Fortunately there is an opportunity
to remedy matters, because this is only a draft Bill. The Home
Office has shown, in the Human Rights Act, that it can develop
policy proposals which maintain a careful balance between competing
values; and turn them into an elegantly drafted and beautifully
clear statue. A Freedom of Information Act should be equally clear,
for citizens and administrators alike.
232 Australia, Canada and New Zealand have the added
advantage, for research purposes, of having been closely studied
by UK civil servants on travelling fellowships to study the operation
of FOI: Robert Hazell (1986-94), Andrew McDonald, (1996-97). This
means there is a strong understanding of how their legislation
works in practice, not just on paper, and of its impact on the
workings of the government. Back
For a fuller explanation of the difference between Open Government
and Freedom of Information see Appendix. In relation to publication
schemes the Government does separate the two approaches: Consultation
Document para 37 explains that "Material made generally available
in accordance with a publication scheme would be exempt under
clause 16 from the right of access. As such, the authority would
not be obliged to respond to requests for it on an individual
All the Australian States have their own FOI laws, which
are briefly summarised in Australian Law Reform Commission Report
no 77: Open Government-A Review of the federal Freedom of Information
Act (1995), paras 3.14 to 3.21. Back
In Canada the following provinces have FOI laws: Quebec,
New Brunswick, Ontario, Nova Scotia, Newfoundland, Manitoba, Saskatchewan,
British Columbia. Back
The duty to give reasons should not be seen as an adjunct
to FOI. See Andrew le Sueur, "Legal Duties to give Reasons",
(1999) Current Legal Problems Back
Subject to exceptions mentioned in a footnote to the Code:
"There will be a few areas where well-established convention
or legal authority limits the commitment to give reasons, for
example certain decisions on merger or monopoly cases or on whether
to take enforcement action". PRESUMPTION IN FAVOUR OF DISCLOSURE Back
Consultation Document Cm 4355 para 14. Back
op cit para 4.6. Back
NZ s10 permits such a response in relation to seven exemptions,
leaving 11 exemptions where a "neither confirm nor deny"
response is not allowed. Back
In Australia the public interest test applies in relation to five
of the exemption provisions; in New Zealand 12; in Ireland to
eight. In Canada there is no overriding public interest test. Back
See for example Ire s8(4): "In deciding whether to grant
or to refuse to grant a request: Back
Part II preamble second para. Back
In Ireland individuals can seek access to their personal
information under either the FOI Act or the Data Protection Act
1988 (s 46(3)). It remains to be seen whether this dual access
regime will survive when Ireland legislates to implement the EU
Data Protection Directive. Dual access was contemplated in the
UK White Paper (para 4.6), but is firmly ruled out in the draft
Both sets of figures are for 1986-87, after four years of
operation. The actual time spent on each request is probably less
than these figures suggest, because they are derived from top-down
calculations based on the total number of FOI staff. Source: Treasury
Board (Canada); Attorney-General's Department (Australia). Back
In Canada the Treasury Board estimated the average staff hours
per Access request in the first four years of the legislation
to be 119,74,53,33. This shows how efficiency improved with experience;
but it also shows how time-consuming FOI requests are, even in
a relatively restrictive regime. Back