Select Committee on Public Administration Memoranda


MEMORANDUM 33

Submitted by Mark Fisher MP

1.  INTRODUCTION

  I welcome the Freedom of Information Draft Bill but I am worried by the way in which several of its key elements are drafted.

  Some of these are central: the powers of the Information Commissioner; the level of "harm tests"; the width of discretion which remains in the hands of Ministers. Some are peripheral: the power to restrict the publication of information that is not provided on a discretionary basis; the right to question the motives of applicants. All are important. Together they create the tone of the Bill and the presumptions that inform it.

  Access to public information that is as open as possible is important in a democracy. Without it the public's ability to participate in informed debate is constrained; the ability to hold the Government to account is limited; and the quality of government-decision making is likely to suffer.

  Since information is power, the control of information in the hands of the few is undesirable. However, if the balance of rights and restraints is properly tuned, Freedom of Information is a positive force which can benefit both Government and the public.

  Contrary to media myth we are not a secretive society. Sheaves of public information are published every day. But, lacking a statutory right of access, this information is released at the discretion of the Government. The purpose of Freedom of Information legislation is to replace that discretion with statutory rights. Instead the draft Bill perpetuates that discretion in some crucial areas.

  We should remember that there is information which, in the public interest and for the sake of good government, should be exempt from any right of access. Such exemptions are common to all Freedom of Information legislation across the world.

  What determines good Freedom of Information legislation is the range and nature of those exemptions; the flexibility of the regime which assesses whether the public's interest lies in publishing or on withholding information; and the strength and independence of any system of adjudication.

  In some crucial respects the draft Bill is deficient. The degree of power that remains in the hands of the executive is unnecessary and undesirable and is conducive neither to a participatory democracy nor to good government.

  I welcome the fact that this is a draft Bill, susceptible to amendment before it is put before Parliament, and that the Home Secretary in his evidence to your Committee has already indicated areas which he recognised could or might be reconsidered. This is an open approach to legislation that is novel and refreshing.

  I am confident that, if a small number of clauses are amended a good Freedom of Information Act can come out of this draft Bill which will greatly enhance our public life and will fully redeem the Prime Minister's belief, in the preface to the 1997 White Paper, that "giving people in the United Kingdom the legal right to know" will be a "fundamental and vital change in the relationship between government and governed".

  Several of these potential amendments have been identified in previous submissions to your Committee, particularly by Elizabeth France and by Lord Lester. I will confine my observations to those aspects of the draft Bill which have received less attention, testing the Bill against the questions which should underpin all Freedom of Information legislation:

    (a)  Will it empower individual citizens, giving them more information which affects their lives?

    (b)  Will it allow individual citizens to participate more fully in the public debate and in the process of government?

    (c)  Will it help to make government more accountable?

    (d)  Will it result in better government?

2.  THE LACK OF A PURPOSES CLAUSE

  I believe that the draft Bill would benefit from a new clause outlining the purposes of the Bill. Such a clause would provide a useful point of reference for the Information Commissioner and others when there is need to determine whether information should be withheld or disclosed.

  The New Zealand Official Information Act 1982 offers a model in its clause 4 which has the virtues of simplicity, brevity, clarify and confidence.

    (a)  To increase progressively the availability of official information to the people of New Zealand

(i)  To enable their more effective participation in the making of administration of laws and policies;

(ii)  To promote the accountability of Ministers of the Crown and officials—and thereby to enhance respect for the law and to promote the good government of New Zealand:

    (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.

  What is particularly impressive about the New Zealand clause is that in scarcely more than ten lines all the central characteristics and purposes of Freedom of Information legislation are laid out: participation; accountability; access to personal information; a public interest test; the preservation of personal privacy, and the promotion of good government.

  Furthermore by using the word "progressively" it declares its belief that Freedom of Information is not a static, finite concept but is a right that will and should develop as both the public and government grow more confident operating it.

  A clause based on New Zealand's clause 4 would be a useful New Clause to be added to the Bill.

3.  CLAUSE 28. GOVERNMENT DECISION MAKING AND POLICY FORMULATION

  If Freedom of Information is to contribute to more accountable and better government it is essential that the public has the right to know on what basis and evidence the Government has formulated a policy or has acted.

  Unless the public has the right of access to the same information as that available to the Government, it will be impossible to make a fair and informed assessment of the quality and wisdom of the Government's policy or action.

  At the same time it is equally essential that the Government has the freedom to discuss and develop policy, testing options, evaluating alternatives, costs, implications, in private. Without such privacy government would be impossible.

  Good government is impossible without robust and frank political debate within government, and such debate can only be conducted in camera.

  Clause 28 makes no attempt to balance these two ambitions. It is a clause concerned solely with identifying and describing a class exemption for "the formulation or development of government policy". In case anything has been left out of the apparently comprehensive list in (1) and (2), subsection (3) exempts any information which "in the reasonable opinion of a qualified person" such as a Minister, would "prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown" or "otherwise prejudice . . . the effective conduct of public affairs".

  This class exemption makes no attempt to distinguish between factual information or research which provide the background material for policy making, and the deliberative process during which options and alternatives are assessed and policy formed and developed.

  Nor does it distinguish between open access to policy development as it takes place (often undesirable), and access after decisions have been made. There is no attempt to subject the release of information on policy to a public interest or harm test.

  The White Paper proposed to follow the general thrust of the 1993 Right To Know Bill in not making exempt:

    (a)  factual information

    (b)  analysis, interpretation or evaluation of factual information, or

    (c)  expert advice on a scientific, technical, medical, financial, statistical, legal or other matter.

      However this approach has, in my view, been superseded by the economy and elegance of the Irish Freedom of Information Act 1997, clause 20.

      Note that this exempts information relating to the "deliberative processes" involved in policy making, and if publication would "be contrary to the public interest". But it does not exempt "factual (including statistical) information and analyses thereof", or "the reasons for the making of a decision" or "the report, study or analysis of a scientific or technical expert".

      This clause would seem to satisfy both the proper concerns of government that the making/deliberation/sifting/testing of policy options should remain private, and the proper concern of the public that they should be able to share the factual information available to government upon which policy decisions are made, and so have a basis from which to assess the Government's final decision.

      If the Government needs more reassurance that this slight widening of access to factual information would not compromise policy making, it should examine the research it and its predecessor commissioned into the Australian and New Zealand Acts. The New Zealand Law Commission in its 1997 report, Review of the Official Information Act 1982, concluded that "Ministers and officials have learned to live with much greater openness. The assumption that policy advice will eventually be released under the Act has in our view improved the quality and transparency of that advice", while the opinion of a former premier of Victoria was that the public's access to the material on which government formulates policy "has had a significant impact on the quality of decision making".

    Irish Freedom of Information Act 1997

      20.—(1)  A head may refuse to grant a request under section 7—Deliberations of public bodies.

    (a)  if the record concerned contains matter relating to the deliberative processes of the public body concerned (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes); and

    (b)  the granting of the request would, in the opinion of the head, be contrary to the public interest;

and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

  (2)   Subsection (1) does not apply to a record if and in so far as it contains—

    (a)  matter used, or intended to be used, by a public body for the purpose of making decisions, determinations or recommendations referred to in section 16;

    (b)  factual (including statistical) information and analyses thereof;

    (c)  the reasons for the making of a decision by a public body;

    (d)  a report of an investigation or analysis of the performance, efficiency or effectiveness of a public body in relation to the functions generally or a particular function of the body;

    (e)  a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of a public body made pursuant to any enactment or scheme.

  It has improved the public sector's professionalism and the capacity of its officers to develop, analyse and articulate policy that stands up to scrutiny".

  I believe that the Government has nothing to fear and much to gain in facilitating more informed and intelligent debate in policy issues.

  Clause 28 would be greatly improved by its redrafting to incorporate the distinction between factual information and the deliberative process of policy making, expressed in the Irish clause 20, and by making the release of deliberative information subject to a public interest or harm test.

4.  EXEMPTIONS. PART 2

  The main exemptions identified by the draft Bill are, in themselves, unexceptional, being common to all Freedom of Information Acts in countries such as Australia, New Zealand, Ireland etc.

  Viz. Security (cl.18) National Security (19) Defence (21) Internet Relations (22) The Economy (23) Law Enforcement (26) Policy Formation (28) Personal Information and Privacy (31) Information given in confidence (32) Commercial confidential information (34).

  However the draft Bill widens exemptions to include investigations (Cl.25), an area not covered by any other Freedom of Information legislation.

  Clause 25(1) is unexceptional in that it exempts information which might inhibit an authority's investigation as a result of which a person might be charged with an offence.

  But clause 25 goes much further and exempts information that has "at any time" been held by an authority for the purposes of any investigation relating to improper conduct, fitness or competence, the causes of an accident, health and safety at work, protection of the property of charities, any civil proceedings brought by an authority.

  This catalogue of various forms of impropriety or mismanagement by authorities includes many matters which are precisely those about which people want information: accidents, such as the Clapham Rail Disaster or the sinking of the Herald of Free Enterprise (iii); fraud or embezzlement (i); mismanagement of a hospital or prison (Wormwood Scrubs?), (ii); Outbreaks of salmonella or e-coli, (viii).

  Of course it is right that information should not be released which would prejudice or compromise a police inquiry or criminal proceedings but once an investigation has been concluded and has not led to a prosecution, there is no obvious reason why such information should not be accessible.

  Similarly there is no apparent reason why the Information Commissioner should not have the power to rule and to distinguish between non-exempt material which may be released and other material which is needed for a prosecution. Without that power, this clause will scoop up and exempt, for all time, information which is entirely harmless.

  The Irish Freedom of Information Act 1997 addresses the same problem in its clause 23 on "Law Enforcement and Public Safety".

  Sections (1) and (2) are more precise than the draft Bill in identifying information which would inhibit law enforcement, while section (3) helpfully specifies the information and circumstances in which information touching law enforcement (or other investigations) should not be exempt.

  In clause 25(I), the words "at any time" should be deleted, and an amendment inserted which will allow the Information Commissioner to test the need to exempt all information and to allow the release of any that is non-sensitive, possibly modelled on the distinctions drawn in Irish clause 23.

Irish Freedom of Information Act, 1997

  23.—(1)  A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to—

    (a)  prejudice or impair—

(i)  the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

(ii)  the enforcement of, compliance with or administration of any law,

(iii)  lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property,

(iv)  the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal,

(v)  the security of a penal institution,

(vi)  the security of the Central Mental Hospital,

(vii)  the security of a building or other structure or a vehicle, ship, boat or aircraft,

(viii)  the security of any system of communications, whether internal or external, of the Garda Síochána, the Defence Forces, the Revenue Commissioners or a penal institution,

    (b)  reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence, or

    (c)  facilitate the commission of an offence.

  (2)  Where a request under section 7 relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.

  (3)   Subsection (1) does not apply to a record:

    (a)  if it—

(i)  discloses that an investigation for the purpose of the enforcement of any law, or anything done in the course of such an investigation or for the purposes of the prevention or detection of offences or the apprehension or prosecution of offenders, is not authorised by law or contravenes any law, or

(ii)  contains information concerning—(ii)  the performance of the functions of a public body whose functions include functions relating to the enforcement of law or the ensuring of the safety of the public (including the effectiveness and efficiency of such performance), or

(iii)  the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law or the effectiveness or efficiency of the implementation of any such programme, scheme or policy by a public body,

    and

    (b)  in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.

  (4)  In subsection (1) "penal institution" means:

    (a)  a place to which the Prisons Acts, 1826 to 1980, apply,

    (b)  a military prison or detention barrack within the meaning, in each case, of the Defence Act, 1954.

    (c)  Saint Patrick's Institution, or

    (d)  an institution established under the Children Act, 1908, in which young offenders are detained.

5.  DISCRETIONARY DISCLOSURES CLAUSE 14

  Subsection (4) allows a public authority to require an applicant to explain the use to be made of information, and then to withhold that information if it does not approve of the use to be made of the information.

  Subsection (6) is a gagging provision which permits a public authority to restrict "the use or disclosure of the information" thus negating the concept of openness.

  These subsections would allow a public authority to withhold or restrict information if it did not consider an applicant respectable or if it considered that publication as part of a campaign, or in a fringe periodical, was not desirable.

  These subsections are contrary to the basic principles of freedom of information, restricting a right of access by the arbitrary discretion of a public authority, even when the release of information is shown to be in the public interest.

  Access should be determined by reference to the material or information involved, not by reference to the character or intentions of the applicant. Such an approach does not exist in any other Freedom of Information legislation. If information is exempt and its publication is in the public interest, it should be released.

  These subsections (4) and (6) should, in my view, be deleted from the Bill.

6.  INFORMATION NOTICES CLAUSE 44

  Clause 44, subsection (7) relieves a public authority of the duty to co-operate with the Information Commissioner and provide information that she may require, if that information reveals evidence of any offence and could expose the authority to prosecution.

  This is bizarre. These circumstances, of actual or potential wrongdoing by a public authority, are exactly the circumstances in which the public needs to have a right to know what is being done in its name and with its money. Instead this subsection conspires against the public, and the Commissioner, in covering up such evidence.

  It must be a mistake for new legislation to give the force of law to such actions.

  Subsection (7) should be deleted.

7.  MINISTERIAL POWERS—CLAUSES 28(3), 36(4), AND 37(1)

  These clauses give surprising, and in my view, inappropriate and unnecessary powers to Ministers and others.

    (a)  Clause 28(3) exempts information if "in the reasonable opinion of a qualified person" disclosure would prejudice "the effective conduct of public affairs". This gives Ministers and others extraordinarily wide powers to decide what should and should not be exempt.

  This returns us to the present situation in which public information is only released at the discretion of Ministers, and is precisely why we are legislating to replace such grace and favour by statutory rights. This clause, in effect, has the potential to undermine the draft Bill.

    (b)  Clause 36(4) gives unrestricted power to the Secretary of State to make additional orders to restrict access and exempt information.

    (c)  Clause 37 has the strange effect of restricting access to harmless information whose release is in the public interest "if any other information (whether or not held by the public authority and whether or not accessible, or likely to become accessible, to members of the public) became available at the same time or subsequently".

  As with clause 25, covering investigations, this clause would prevent publication of harmless material in a blanket, catch-all way. It is hard to fathom what the drafter of this clause is seeking to prevent but, whatever convoluted sets of circumstances were envisaged, the Information Commissioner should have the power to distinguish between exempt and non-exempt information when combined and prevent the non-exempt information being blighted, if that is in the public interest.

8.  CONCLUSION.  HARM TESTS, PUBLIC INTERESTS TESTS, THE POWERS OF THE COMMISSIONER

  The Committee has already received evidence from Elizabeth France that the Information Commissioner should have "some real teeth" and that, in its present form, the draft Bill does not legislate for those teeth.

  Indeed clause 45(2) states that the Commissioner "may not require the public authority to disclose particular information" on grounds of public interest.

  The present Code gives the Ombudsman the power to call for the disclosure of exempt information in the public interest "unless the harm likely to arise from disclosure would outweigh the public interest in making the information available".

  There are other ways in which the power given to the Information Commissioner by the draft Bill, to ask a public authority to reconsider their refusal to release exempt information on a discretionary basis, could be realised. One would be the power to issue enforcement notices if, as Mrs France said, "in spite of iteration . . . the public authority has given what the Commissioner believes to be the wrong weight to some of the elements".

  As she pointed out, her experience as Data Protection Registrar is that there is seldom need to proceed to enforcement. The possibility of it is enough to secure compliance.

  I share the Home Secretary's view that the rigour of harm tests should be tailored to the type of information under consideration but I regret that the tests in the draft Bill are all weaker than those proposed in the White Paper. I remain uncertain about how the word "prejudice" will be interpreted. Being a word which describes opinion or perception, it seems to be a rather less robust test than "harm".

  However I believe that the stringency of any harm tests is far less important to the effectiveness of the Bill than the absence of a binding public interest test.

  More than any other single element of this draft Bill, the ability of an independent Commissioner to rule whether publication of information is or is not in the public interest, and to enforce that judgement, would convince both the public and Government that people in Britain had finally achieved the right to know and that the "fundamental and vital change in the relationship between government and the governed" envisaged by the Prime Minister had been realised.

July 1999





 
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