Select Committee on Public Administration Memoranda


Annex

HOW THE BUSINESS COMMUNITY IS USING FREEDOM OF INFORMATION IN OTHER COUNTRIES

  This Annex, based on research from the sources documented below, sets out a brief summary of the nature and extent of business use of Freedom of Information legislation in other countries.

USA

  The US has had a Freedom of Information Act for more than thirty years and the business community has benefited substantially from it. Indeed the US administration has actively encouraged the private sector to exploit public sector information commercially. American businesses have capitalised on the information that is available to them to seek competitive advantage, to assess possibilities for obtaining licences, government contracts etc and to make sure that agencies are treating them fairly.

  The business community is by far the greatest user of the Freedom of Information Act in the US. NASA, for example, gets about 3,000 Freedom of Information Act requests a year. About 80 per cent of these are commercial and are concerned with contracts, proposals, and modifications to contracts and requests for proposals. Companies use the Act to get information about the business environment and learn more about the regulatory climate. Routine business use is made of the Act for marketing purposes, to obtain information about customers and potential customers. Other examples of business use of the Freedom of Information Act in the US include the examination and re-examination of tenders and winning bids. Companies will ask for information to keep track of technology and to determine how to bid competitively as well as to learn about agency attitudes and strategies. Trade publications have used the Freedom of Information Act to get information about agency actions of interest to subscribers.

  The US Freedom of Information Act has also been used effectively by business to uncover misconduct by federal agencies. For example ICI used the Freedom of Information Act to access documents which showed that Small Business Administration (a government agency) had committed a more serious violation of its own procedures than its official correspondence admitted. This led the Administration to terminate an illegal contract. Without a Freedom of Information Act, the only alternative would have been to sue the government—something most small businesses would not have the resources to even contemplate. The businesses that use the Act range from small, one-person companies to large multinationals. They include construction companies, real estate agencies, manufacturing companies, dredging companies, specialist publications, catering businesses, law firms etc.

  Overall the Department of Defence and the Department of Health and Human Services have been the areas of government to receive the most number of requests under the Freedom of Information Act. About 80 per cent of all requests are fully granted. In 1993 there were 375,424 requests made to government agencies using Freedom of Information legislation.

Canada

  The equivalent of a Freedom of Information Act was introduced in Canada in July 1983 giving a right of appeal to the Federal Court. Business use of the Act is increasing with nearly half of all requests now coming from the corporate sector. Specific areas of the business community have particularly appreciated the benefits of a Freedom of Information Act to access information about winning bids in government tender activities, and have also used it to look at meat inspection procedures, aircraft safety inspection procedures, nuclear power plants safety issues, and to challenge environmental impact assessments. The health industry has been a consistent user of the Act, requesting information on drug licensing and other trade mark and licensing issues. Originally the Act (the Access to Information Act) was used mainly by the media, lawyers and academics, however, there has been a marked uptake in the business community, with more than 5,000 requests coming from this sector each year. The most active business area relates to government tenders and contracts.

  The Act, which covers central government and most agencies, gives a very wide right of access to records, even those which do not exist, but which can be produced from a machine readable record. It allows access to Federal Government records including "letters, memos, books, plans, maps, photographs, films, microfilms, sound recordings, computerised data . . ."

  The Act includes a requirement to provide written notice to any third party about whom confidential business information is requested. Requests may only be made by Canadian citizens or permanent residents.

Australia/New Zealand

  Australia introduced a Commonwealth Freedom of Information Act in December 1982 and all the States have followed in due course. There has been only a low level use by business of the material potentially available. Only about 10 per cent of all requests (ie 3,400 each year) come from the business community, and it has been suggested that the reason for this is that managers of companies are concerned that if they seek information for example on a competitor it is probable that the competitor will seek similar information on them.

  The Federal Attorney-General has publicly expressed his disappointment that there has not been greater use made of the Freedom of Information Act by businesses.

  Academic research has highlighted that one of the greatest advantages for businesses to come out of the Freedom of Information Act is a review and improvement in the record keeping procedures and practices of business. In general businesses have focused on protection rather than exploiting the advantages of having a Freedom of Information Act. The Australian Freedom of Information Act provides access to documents (not information), including computerised records. It includes reverse procedures which means companies are notified before information about them is disclosed to third parties and gives them the opportunity to make representations and challenges. An Ombudsman and an Administrative Appeals Tribunal are available for complaints and appeals.

  New Zealand enacted its Official Information Act in 1982, which came into force in mid-1983. New Zealand differs from the other countries in this Annex by making "information" rather than documents or records the subject matter of access, however otherwise it is similar to the Australian legislation. It gives very wide access rights to official information from central government, public bodies and corporations and is fully retrospective. A position of Information Ombudsman was created to deal with information complaints. His decisions are mandatory on the Minister or department concerned.

Europe

  The European Union is leaning more favourably toward open government decision-making processes. The Amsterdam Treaty, effective from 1 May 1999, has introduced greater access to official documents produced by the EU institutions. The European Commission is currently consulting on its Green Paper on Public Sector Information in the Information Society. The Green Paper states in its introduction that public information is an absolute pre-requisite for the competitiveness of European industry. Further, that EU companies are at a serious disadvantage compared to their American counterparts which benefit from "a highly developed efficient public information system at all levels of the administration". Several of the Member States have their own Freedom of Information Act.

  A non-retrospective Freedom of Information Act was introduced in Ireland in April 1998. It has been increasingly used by business. Figures from its introduction to December 1998 show that 14 per cent of all requests received were from business (377 from 2,750 requests).

  The former Labour Party Minister who oversaw the introduction of the Act, Eithne Fitzgerald, said that the Act would become a very powerful tool for business organisations to get information about themselves held by government departments and agencies. It can also be used to get government policy papers and analysis of their sectors. All government departments and a number of public bodies such as local authorities and health boards are covered by the Act. The position of Information Commissioner, whose decisions are binding, has been created.

  France has had a retrospective Freedom of Information Act since 1978 which provides the same access to individual citizens as corporations. The Netherlands introduced a Freedom of Information Act in 1991. Sweden has had a Freedom of the Press Act as part of its constitution since 1766. All official documents are available for inspection and copying but commercial organisations are excluded. Access to documents is free unless longer than nine pages.

  Austria has a constitutional law, dating from 1987, which provides a minimum framework, namely that all officials at the federal, regional or local level should provide information where requested so long as this does not conflict with a legal obligation to maintain secrecy.

  While Belgium has laws on civil transparency which provide a general right of access to documents held by a public authority, they cannot be used for commercial ends.

  Italy has a general access law which provides information free of charge. Portugal, Greece and Spain also have a law providing general access to public sector information.

June 1999

SOURCES

  Freedom of Information and Business (Discussion Draft), Jim Amos, The Constitution Unit, School of Public Policy, UCL, October 1998.

  Freedom of Information: The Law, the Practice and the Ideal, 2nd edition, Patrick Birkinshaw, Butterworths, 1996.

  Public Sector Information: A Key Resource for Europe, Green Paper on Public Sector Information in the Information Society, COM (1998) 585.

  Freedom of Information: Consultation on Draft Legislation, Home Office, May 1999.

  "Business world taps into freedom of information", Colm Keena, The Irish Times, 29 January 1999.

  "Freedom of Information Act used as business advantage", Shane Scott, The Baltimore Sun, 10 August 1997.

  University of Tasmania: Freedom of Information website.

  Public Access to Business Information held by Government, Dr R S Baxter, (1997) Journal of Business Law, 199.

  Proceedings of Seminar on Commercial Confidentiality, 1994.

  Commercial Confidentiality, National Consumer Council, 1998.





 
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Prepared 16 August 1999