Submitted by the CBI
The CBI welcomes the opportunity to make preliminary
observations on the draft Freedom of Information Bill. We support
the Bill's aim to increase openness and accountability in government
and public bodies. The Bill addresses and resolves a number of
the concerns that we expressed in our response to the consultation
on the White Paper, particularly with regard to commercial interests
and information provided in confidence. We outline below our views
on the principal issues raised in the draft Bill, and shall be
making more detailed submissions to the Home Office at the end
of the consultative period.
We are concerned that there should
be greater transparency about which public authorities are to
be brought within the ambit of the new legislation. At least all
the main regulatory bodies should be included within the Bill
at the outset.
We support the proposal by Clifford
Chance that the Bill should open with a "purpose clause"
making it quite clear that the underlying objective is to facilitate
public access to information held by public authorities. We agree
that, as the Bill contains many restrictions and exemptions, there
is a real risk that otherwise emphasis is likely to be placed
on finding reasons to block disclosure.
We endorse the appointment of an
Information Commissioner and the creation of a new Tribunal. We
believe that the intention to merge the functions of the Information
Commissioner with those of the new Data Protection Commissioner
will add clarity and consistency to both regimes.
We welcome the obligation on public
authorities to adopt and maintain an appropriate scheme on the
publication of information. We think that there is some merit
in public authorities allowing access to categories of information
held, other than those in exempt categories. This could be done
through the model publication schemes.
Adequate safeguards for the protection
of third parties affected by the disclosure of information must
be put in place. They should have rights of appeal directly to
the Commissioner or to the Tribunal against decisions to release
information which they believe would prejudice their interests.
They should also be informed and given the opportunity to make
representations before a decision to release information is made.
The ability of a public authority
to make discretionary disclosures of information in the public
interest even when an exemption applies should not extend to information
relating to commercial interests. Information could be collected
or generated by a government department about a company which
could be prejudicial to the commercial interests of that company.
This kind of information should be excluded from the discretionary
disclosure provision. We think it would be useful to have further
guidance on how "public interest" will be interpreted.
We think that "commercial interests"
and "trade secret" need to be defined. We wish to reiterate
the comments made in our response to the White Paper, that information
generated by a business as a result of internal debate, planning
and consideration of proposals should not fall within the public
We are concerned that the scope of
some of the exemptions are too broad, including the exemption
on decision-making and policy formulation. We think that factual
information and background papers that inform policy considerations
should normally be available, at least once decisions have been
The proposed functions of the Secretary
of State, Lord Chancellor, and Information Commissioner are broadly
acceptable. We would recommend that before issuing codes of practice,
the Secretary of State and Lord Chancellor should be obliged to
consult interested parties. We believe it is essential that interested
parties should also be consulted before the Secretary of State
exercises his order making powers under clause 65.
We welcome the Secretary of State's
intention to carry out a regulatory impact assessment before exercising
his order-making powers to bring private sector bodies within
the ambit of the new legislation. We await a cost impact statement
indicating how much it will cost the Government to implement the
We support the proposal by Clifford
Chance, to introduce a new clause giving all companies the right
to "access any factual information held by a public authority
about that company, and the right to correct inaccurate information".
We agree that these rights should be modelled on those enjoyed
by individuals under the Data Protection Act and be subject to
the same safeguards and exemptions.