Submitted by Gregory Palast and Stuart
Weir on behalf of the Democratic Audit, University of Essex
This submission has been prepared in haste to
meet the timetable of the Committee on Public Administration.
We would be willing to clarify or amplify any of the points it
contains at a future date. The submission is divided into three
1 deals with the public interest in freedom of information;
2 analyses specific failings of the draft FOI bill; and
3 compares and contrasts provisions in the USA and UK for the
disclosure of particular kinds of information.
PART 1: DEMOCRACY,
1. We begin with a statement of first principles.
Popular elections are the foundation stone of a democratic self-governing
country. It is through elections that citizens choose representatives
who govern and control the state in their place; and it is through
elections that citizens ultimately control the conduct of government
and choose between alternative governments.
2. But the public must be fully informed
if they are to fulfil their role of holding government to account
atand betweenelections. For popular elections to
function properly, there must be a free, independent and uncontaminated
flow of official information to the public, as well as wider freedoms
of expression and opinion. Official information belongs neither
to the Government or the state, nor to Ministers or officials.
It is by its nature public information, collected in government
for the purpose of governing on behalf of the people. Much of
it may be created by the state, but it is not owned by the state.
Its collection, assembly, creation analysis is paid for out of
public funds for the benefit of the population as a whole.
3. A huge mass of public information is
collected by government departments and agencies from private
corporations and businesses, and from individual citizens. Data
protection laws exist to protect individual privacy and to ensure
that citizens can check the accuracy of personal files held on
them by public authorities. Commercial enterprises are protected
by patent, copyright and other laws. Commercial or private information
given to or obtained by government is in principle owned by the
public and ought to be freely available, subject to strictly-defined
4. There are particular democratic arguments
for restraining notions of "commercial confidentiality"
in the public sphere. One of the major responsibilities of liberal
democracies in a modern world where the free market holds sway
is to hold the balance between powerful business interests, consumer
protection and the overall public interest. Ordinary citizens
often require protection from big business just as much as from
the state. Governments and their agencies perform significant
regulatory functions. Business interests and other organised interests
are in continual dialogue with government, seeking and exerting
influence over legislative proposals and policy, discussing subsidies
and tax regimes, giving and receiving information. This dialogue
is an integral part of modern government and belongs in the public
5. Such basic principles have never been
recognised by government in the United Kingdom. At least since
Victorian times, government has been founded upon the principles
of "trust" and "honourable secrecy". Ministers
and a professional Civil Service, usually drawn from the same
social elite, have governed according to a gentlemanly club ethic
and its rules of conduct. A tradition of near total secrecy in
government was established which depended, on the one hand, on
the notion of the probity of the governors and on the other hand,
the deference of the governed. This tradition was reinforced by
a platonic notion of guardianship in public affairs and a culture
of gentlemanly reticence in private life. There were few formal
or legal checks on the conduct of government. Similarly, there
were and are few rules governing the daily dialogue between government
officials and organised interests, which is as secretive as it
6. We hardly need point out that this tradition
of government is breaking down. The public do not trust politicians
nor even their scientific and expert advisers. Legal and formal
rules governing the conduct of Ministers, officials and MPs are
being introduced, developed and codified and their efficacy is
under continuous scrutiny. Charters set out rules of performance
and conduct for most public bodies. Information gushes out of
Whitehall and its outposts. The activity of government is kept
in the spotlight by notably undeferential media. Public opinion
is convinced of the need for open government and freedom of information.
7. But the old order remains largely in
place at the heart of government. The idea of "trust"
still reigns supreme; and there is concern somehow to restore
it among ordinary citizens. Ministers and officials maintain tight
controls over the release of official information. Formally, a
Code of Practice makes public access to all significant official
information subject to the discretion of Ministers and officials
and exempts wide areas of potentially sensitive information from
any access at all. The release of official information on important
policies or decisions is generally released with a spin which
is favourable to the Government.
8. The prominence given to spin in the official
government information service in fact makes it all the more important
that citizens can gain direct access to unspun official information
as an antidote. Moreover, high-level communications between the
Prime Minister and Ministers and the media are conducted on terms
of strict confidentiality through the lobby and unofficial briefings
and leaks. A huge mass of information is withheld from access
or release under the Code's exemptions for policy advice and for
"commercial confidentiality"; and much significant informationfor
example, on medical drugsis further protected from disclosure
to the public by the criminal law.
9. In other words, publicly-owned information
remains the de facto property of the state; and the release of
significant information is generally neither free, independent
10. The draft FOI bill, published by the
Home Office, seeks in essence to create a discretionary scheme
of official control of public information in statutory form. In
his evidence to the Committee on Public Administration, the Home
Secretary clearly sought to recreate the idea of "honourable
secrecy", assuring Members of his open approach towards the
release of information at the Home Office. On 13 July, Dr Kim
Howells, a DTI minister, assured the Committee that Ministers
would not hesitate to reveal information which revealed "nasty
secrets" and misconduct in industrial affairs. He would use
his discretionary powers "to be as open as possible".
But implicit in both their testimonies is the principle that decisions
on disclosure rightly belong in the hands of Ministers (and officials)
who could be trusted to use their discretion in the public interest.
11. Such testimony seems to assume a consensus
around the release of public information, led by well-meaning
politicians and officials, with individuals and organisations
in civil society playing along. But Ministers are clearly aware
that this is a false ideal. They are in fact seeking to control
the consequences of FOI. But an FOI regime will on occasion embarrass
Ministers and officials; upset carefully brokered policies and
programmes; undermine official agreements with industry; foment
political scandals; expose businesses to legal action, competitive
pressures, challenge from pressure groups; enrage government's
friends in the private sector; if the FOI laws are working properly.
12. It is a big "if", because
the prevaling culture within Ministers' assurances are made is
immediately clear in the provisions of the draft Bill. Oral and
written evidence to the Committee, in particular from the Campaign
for Freedom of Information, has already revealed both the depths
and ingenuity of statutory and discretionary checks upon access
to information within the Bill and the weaknesses of the proposed
enforcement regime. We endorse the Campaign's detailed critique
of the provisions of the draft Bill and will not duplicate them
here. However, we wish to protest at the sinister demand that
requesters should be obliged to disclose why they want informationin
effect, being forced to disclose information to government when
it should be the other way round. This proposal is an affront
to the principle of political equality. As the official guide
to Ireland's new FOI Act states, "Each person has an equal
to access records under the Act, irrespective of any reasons the
requester may give or any opinion the public body may have regarding
such reasons" (para 3.5).
13. Our main aim however is to stress the
defensive character of the whole; this draft Bill is a blueprint
for laager politics, a Fortress Whitehall and well-defended public
services, with Ministers and officials fully armed to repel inconvenient
or damaging requests for information, and even certain requesters
(including possibly those "with an agenda"). It is the
curse of democracy that those in authority must expose themselves
to the risk of losing face, prestige or even authority itself.
To promise freedom of information, but to attempt to avoid its
consequences leads to the Orwellian complexities of the draft
Bill. In Britain, information is to be re-born free, but in chains.
14. This is vitally important, because in
no FOI regime in the world can compliance by politicians and officials
be taken for granted. The Information Commissioner in Ireland
last year paid tribute to the officials who take decisions on
requests for information under the new regime there "conscientiously
and in good faith," and in the spirit of the legislation.
But he too identified difficulties in this first pioneering year.
The experience of FOI regimes in Australia , Australian states,
Canada, New Zealand and the USA is of persistent non-compliance
which has recently become more prevalent and varied in the three
Commonwealth states. One analyst has created three categories
of adminstrative response"malicious non-compliance"
adversarialism and compliance. The first category includes shredding
requested documents, use of "Post-It" labels, deliberate
non recording of information, and steering releasable information
into exempt status.
15. In the USA, public authorities will
block potentially damaging requests right through to a final court
decision and regard legal defeat as a political victory, having
taken the heat out of the original issue. It took four years in
the courts to gain the release of the Pinochet files. Hillary
Clinton had to be fined $300,000, and her aide threatened with
prison for withholding documents from her task force on health-care
before the White House would release them. Governments and authorities
do not easily give up documents which will embarrass or expose
16. It is important at this stage to stress
the adversarial nature of relations between governments and officialdom
and applicants for information under FOI regimes around the worldfor
the record shows that the better the legislation and more thorough
the preparations, the more effective the final regime will be.
An FOI law worth its name must be able to bite the hand that drafts
it. Committee members should seek to make certain that Britain's
new legislation does.
17. Thus, as Eithne Fitzgerald, the Irish
Minister who prepared and steered the Irish FOI Act into law,
found in her preparatory research,
"it became clear that a strong, effective
and independent appeals system would be critical in ensuring that
access to information would really work . . . a strong appeals
system is vital in establishing the public's right to know in
a political and administrative system steeped in the culture of
In the United States, authorities which withhold
information are liable to punitive judicial sanctions and officials
may even be jailed for non-compliance, as in, the case of Hillary
Clinton's task force cited above. Such strong enforcement powers
may be too fierce for British political culture, but for FOI to
have a realistic chance of working properly, a far stronger enforcement
regime than that which is now on offer must be introduced, with
an Information Commissioner, as in New Zealand, who has binding
powers to order disclosure, subject to override by Cabinet order.
18. The evidence also suggests that establishing
an FOI regime requires more than legislation, however good, on
its own. Irish research concluded that solid efforts to bring
about a major shift in adminstrative culture must be undertaken
and sustained in short-term and long-run measures to embed compliance.
FOI decisions should be the responsibility of officials who are
both high-level and well-placed within departments and authorities.
Publicity and awareness campaigns should be regarded as long-term
strategic commitments. Ireland has accordingly embarked upon strong
administrative measures to buttress the FOI Act and created a
strong Information Commissioner.
19. We doubt this Government's commitment
to an effecive FOI regime in the United Kingdom. The delays and
prevarications in the introduction of legislation, the Government's
evident hostility to Dr David Clark's White Paper, and the abrupt
reversal of its main provisions in the draft Bill all suggest
that the Government plans to pay only lip service to its election
pledges. The draft Bill is in fact designed, as we argue above,
to assist Government Ministers and officials to block and deny
whenever necessary requests for any information which may disturb
or embarrass the Government and other public authorities. Almost
every contingency is allowed for. The balance is firmly cast against
applicants for information.
20. Yet the need for strong and effective
FOI law and practice was made clear by the Scott Report into the
sale of defence-related equipment to Iraq and Iran. The report
was highly critical of the ways in which Ministers and officials
sheltered the then Government's policy on arms sales with "spurious"
and insubstantial arguments about the need to protect information,
as well as directly misleading Parliament and the public. Lord
Howe was quite open in his evidence to Scott about the deliberate
decision taken to prevent public debate on the controversial issue
of supplying Saddam Hussein with arms, explaining that "there
is nothing necessarily open to criticism in incompatibility between
policy and public presentation of policy". Civil servants
from grandees to lesser beings gave similar evidence. Sir Robin
Butler, the former Cabinet Secretary, informed the inquiry that
Ministers should give as full information to Parliament as possible.
But how did he define what was possible?
Scott: "In your experience of government
. . . do you think there is anything in the proposition that the
convenience of secrecy [our emphasis] about what the Government
is doing, because it allows government to proceed more smoothly
without the focus of attack that might otherwise be levelled,
does in practice inhibit the giving of information about what
[the] government is doing?"
Butler: "You can call that a matter of convenience,
if you like. I would call it a matter of being in the interests
of good government".
21. Eric Beston, a DTI official who sought
to mislead the court in the Matrix' Churchill prosecution case,
told Scott that "the avoidance of controversy [is] not an
uncommon concern in the presentation of policy, or . . . the non-presentation
of policy", while others assured him that it was acceptable
to give MPs and the public only `half a picture'". As the
Campaign for Freedom of Information has demonstrated, the draft
FOI bill would wholly conceal a similar conspiracy against the
public interest now. Further, the Parliamentary Commissioner's
reports and the Select Committee on the PCA's own report on open
government in 1996 all record tactics of non-compliance and a
reluctance to follow the spirit of the existing Code of Practice
on Access to Official Information.
22. The draft FOI Bill acknowledges the
need for a major culture shift in official attitudes towards FOI.
But on the evidence of the draft Bill, the Government lacks the
political will to bring it about through credible legislation
and effective preparation. Piecemeal removal of the most obstructive
elements in the draft Bill will not be sufficient; the Bill requires
to be wholly re-made.
A DEMOCRATIC REGIME
23. We urge the Committee to free itself
of the snare of comparing the draft Bill with the Code of Practice
and this Government's White Paper. The draft Bill is undoubtedly
less open than the White Paper and a dubious advance on the previous
Government's Code of Practice. The independent enforcement mechanism
is weaker than that under either regime. But this comparative
approach confines the Committee's examination of the issues within
the state's own terms of reference; it reduces the advance towards
modern and pluralist democracy in Britain to what the state at
its most benign will allow. Britain once recognised itself as
a free country precisely by the absence of the multiple forms
of public secrecy prevalent in repressive regimes abroad; this
draft Bill seeks now to elaborate such multiple forms in what
is already widely regarded as a backward FOI regime.
24. Instead, the Committee could adopt a
robust and democratic view of the issue, based on the first principles
that we set out above, and take as its terms of reference best
practice abroad. This approach involves a rejection of "trust"
and "honourable secrecy" as principles of democratic
government in this country. We should reassert old democratic
principles. Jeremy Bentham once argued strongly for freedom of
information as "a system of distrust". "Whom ought
we to distrust", he asked, "if not those to whom is
committed great authority, with great temptation to abuse it?"
Likewise, in 1788, James Madison, later a US President, stressed
the need to oblige governments to control themselves. "A
dependence on the people is, no doubt, the primary control on
government; but experience has taught mankind the necessity of
25. There is no doubting the aptness of
such principles in the modern United Kingdom. This country has
an over-mighty executive which requires strong checks and balances
on its use of power and conduct in office. It is generally agreed
that such checks and balances in the UK are weak. Free and independent
public access to publicly-held information is a vital "auxiliary
precaution" to buttress the public's primary control of government
at election times. It creates a vital base for any system of checks
and balances; it informs and empowers Parliament, its members
and committees; regulators, organisations of civil society, including
the media and pressure and consumer groups; and the wider public.
26. Although the concept of the "public
interest" is of central importance to the Government's FOI
proposals, it is not positively defined in the draft Bill and
at no time in debate on FOI in the United Kingdom has a full case
for freedom of information been set out. We believe that a FOI
regime must be founded upon a robust statement of the public interest
in freedom of information which goes back to first principles
(see paras. 1-4 above). In a representative democracy, official
state information should be regarded as public information and
be available as of right to the public to enhance their ability
to understand the processes of government and to judge its quality.
The White Paper on open government under the Conservative Government
made a reasonable stab at a general statement of democratic intent,
"At the heart of the Government's philosophy
is a belief in the need to return to individual citizens the power
and means to make their own choices and to determine their own
priorities. The Government has insisted that public institutions
exist to serve the individual, not the other way round."
27. We should like to reinforce the weight
given to general principles by reference to current circumstances
in the UK. First, democracy is a seamless process and accountability
is not confined to the choices made at elections. In a poll of
attitudes towards democracy in Britain, some 60 per cent of respondents
said that voting every four or five years did not give the public
"sufficient power over the way governments act". A third
were satisfied that the vote was enough. Younger people were notably
more dissatisfied with voting alone; 71 per cent of people aged
from 18 to 24, and 69 per cent of 25-34 year olds, agreed that
it did not give them sufficient power over government. More than
three quarters of all respondents believed that ordinary voters
should have a "great deal" or "fair amount"
of power over government decisions between elections, but only
2 per cent said that they had a "great deal" of power
and 14 per cent a "fair amount" of power over official
decisions (see Table). Some 80 per cent said ordinary people had
little or no power over government between elections.
PUBLIC OPINION AND POWER OVER GOVERNMENT
| ||How much power|
should voters have
|And how much power|
do people think they
|A great deal||31 per cent
||2 per cent|
|A fair amount||47 per cent
||14 per cent|
|Little||12 per cent||53 per cent
|None||4 per cent||26 per cent
|Don't know||6 per cent
||6 per cent|
The discrepancy between people's expectations and their assessment
of reality is strikingand evidently damaging. We argue
that the alienation from politics since 1994, and the growing
disillusion with politicians and the political and governing process,
makes it even more urgent in the public interest to create new
links between governors and governed. Freedom of information is
clearly an effective and visible new link and it could be introduced
with immediate effect. There is a public interest in the accountability
of governments and administrations; in understanding why particular
decisions are made; in enhancing the participation of individuals
and groups in the democratic process; and in the potential power
to open any of government's activities to public scrutiny.
28. The importance of FOI to the individual citizen should
be stressed in formulating a statement of the public interest.
Maeve Mc Donagh, an academic specialist in FOI laws, summarising
for an Irish audience the principles of public interest in FOI
regimes abroad, said that the public interest "necessarily
comprenhends an element of justice to the individual". This
means that the public interest is not limited to that which is
in the interest of a significant proportion of the public. There
is a public interest in individuals or minorities "receiving
fair treatment in accordance with the law in their dealings with
29. The 1996 report of the Select Committee on the PCA
on open government listed the benefits to public life of FOI in
Australia and New Zealand: greater informal release of information;
increasing awareness from Ministers and officials that public
administration could not be capricious; greater public participation
in policy debate; and far greater objectivity in the recording
of information on personal files. These are all democratic goods
which should be added to the weight of the public interest in
disclosure. Early experience in Ireland confirms these advantages
of "greater transparency in the decision-making process".
30. The first annual report of Kevin Murphy, Ireland's
Information Commissioner, also makes a significant argument about
the significance of FOI in an era when the activities of government
and public authorities encroach on every aspect of people's lives.
Every day officials exercise discretion in taking administrative
decisions which affect citizens all of whom wish to be treated
properly, fairly and impartially. The exercise of discretion is
vital to the decision-making process; but at the same time it
introduces "an element of uncertainty for the citizen".
This may induce feelings of dependency or inferiority on the part
of the citizen, or a sense of grievance. Such feelings are compounded
by lack of knowledge of the basis on which a decision might have
been taken. The risk of mistakes or misuse is always present.
While various avenues of redress may be present, FOI in Ireland
gives every citizen direct access to the bodies with which they
are dealing and empowers them to check for themselves. This seems
to us to be a compelling aspect of public interest in FOI and,
in particular, for the provisions in the Irish Act which specifically
give citizens the right to be given reasons for decisions taken
by public bodies which affect them.
31. We support calls for a "purpose" clause
in the FOI legislation and a more substantial definition of the
PART 2: COMMENTS
FOI IN THE
32. This evidence now concentrates briefly on more detailed
areas of concern, most notably the class protection afforded to
the development and formulation of central government policy;
the protection of commercial interests, confidentiality, and associated
issues; communications between government and third parties; and
the extension of FOI to quangos and other public bodies. The scope
of significant exemptions in the draft Bill is made considerably
wider by a catch-all clause which allows public authorities to
withhold any information which could "prejudice the effective
conduct of public affairs" (clause 28). This exemption is
drafted in undesirably loose terms and the authority has power
to deploy it merely on the basis of its own "opinion"which
thereupon takes on a legal status which would be very difficult
to challenge. As stated above, we also object to a variety of
proposals in the draft Bill which have been the subject of detailed
objections from the Campaign for Freedom of Information and others.
33. One of the standard defences of the tight ring of
secrecy drawn around central government policy-making in the UK
is that no other country allows for the release of any such information
either. The comparative tables in the Government's Consultation
Document seeks to maintain this canard. But they are inaccurate
and the world is moving on.
34. While most FOI regimes protect high-level policy
advice, they do not protect all other associated material, nor
do they remove it from sight for 30 years or more. The Australian,
Irish and New Zealand FOI laws do not afford class protection
to central policy-making or "maintain constitutional conventions".
On the contrary, they allow policy advice, analysis and other
materials to be disclosed unless their release can be shown to
be contrary to the public interest. There are protections for
internal discussions (as in the USA) or "deliberative processes"
(as the Irish FOI Act) and Cabinet or executive papers and minutes.
But such protections are not necessarily absolute nor long-lasting.
In Ireland, for example, the Information Commissioner has ordered
the disclosure of e-mails, including details of a Cabinet paper
which did not contain "deliberative" material. Cabinet
papers anyway remain officially secret for only five years.
35. Emerging practice overseas seems to be that policy
information is protected at certain stages of the policy process
for the sake of the process, but may be released at points within
the process and when the process is concluded. The Irish Commissioner
has stated for example that "there is a strong argument in
favour of protecting proposals from release at an early stage
in order to allow [a] public body to properly consider [a] matter".
But he has also ruled that information may be released at other
stages in the process to inform public debate. A requester asked
for documents on the Government's negotiations over a national
minimum wage, but some were withheld both because they contained
material on the "deliberative process" and could prejudice
future negotiations. The Commissioner negotiated a settlement
which made further documents available but withheld others. He
explained that "it was not necessary for a deliberative process
to be fully concluded before records could be released",
and that there were "natural breaks in the process",
such as the publication: of an interim report, which provided
the basis for disclosures. Not all information will necessarily
be released at the conclusion of the policy process; that which
could harm frankness in future policy-making, for example, would
still be withheld. But at this stage the presumption shifts to
disclosure; and in New Zeland analysis and policy options are
36. Eithne Fitzgerald has argued that bringing the analysis
of policy options into the open is the best guarantee that analysis
will be thorough and will examine a range of alternative policy
choices. Such openness also reveals the conditionality of policy-making,
the interplay of interests, the balancing of advantages and disadvantages,
and thus contributes to a more developed public understanding
of the policy process. Further, the information deficit of an
opposition compared to a government can be largely redressed if
those in opposition are able to make effective use of broad FOI
powers; and public debate and participation will be encouraged.
37. The Democratic Audit has already argued that the
cordon sanitaire around "policy" is fatal to
open and effective government and expressed scepticism about the
mystique which surrounds the process in Whitehall. The White Paper
did at least admit to some erosion of secrecy around policy-making.
But neither the proposals in the White Paper not in the draft
Bill measure up to the need to open up central government in the
UK to Parliamentary and public scrutiny. Strong government is
a perceived good of the British system; but it requires at least
the strong lash of scrutiny and accountability to Parliament and
the public which depends almost wholly on effective FOI. Otherwise,
the imbalance between the executive and Parliament which endangers
Parliamentary democracy in the UK will continue.
38. The White Paper cites the damage which "random
and premature disclosure" of government deliberations under
FOI legislation overseas can do to policy-making and collective
responsibility (para 3.12, Cm 3818). There are as always dire
forcasts of the effect of disclosure on the candour of official
advice. But these warnings are not borne out in practice. For
example, the Attorney General's Department in Canberra has stated,
"FOI has not had a detrimental effect on frankness and candour
amongst public servants, and on the contrary, has improved the
quality of advice and recorded information". Professor John
Henderson, former head of the Prime Minister's office in New Zealand,
has also confirmed that policy advice has become more rounded
and considered, partly because public servants are concerned to
protect themselves; for this reason, Ministers have been less
enthusiastic about FOI than their officials.
39. Interest groups are intimately involved in pre-legislative
discussions and policy-making in British government through continuous
dialogue and contacts with officials in government departments
and other public bodies. They play a significant and often dominating
role in most important areas of business and national affairs
and their co-operation is often vital to policies being carried
through in practice. Too much formative consultation takes place
within "policy communities" of officials and organised
interests which are generally closed to outside scrutiny and may
subvert formal public consultation and Parliamentary decision
40. This close and largely invisible relationship has
been the norm in British government for most of the postwar period
and precedes the "industry-friendly" New Labour Goverment's
own openness to business interests, the establishment of task
forces on which private business is well represented, and the
willingness of Ministers and their aides to participate in talks
and dialogue with external interests and their lobbyists.
41. High-profile meetings between the Prime Minister
and, for example, Formula One boss, Bernie Ecclestone, or executives
of the US company, Wal-Mart, in March, or between a Treasury minister
and the Chief Executive of PowerGen, or telephone conversations
between the Prime Minister and Lord Sainsbury, or between special
advisers and staff members of the Policy Unit and lobbyists and
business interests quite properly excite attention and demands
for details of conversations.
42. But the need to open up the routine and ongoing relationship
between government officials and external interests is substantial
and equally pressing, though it is now arguably more urgent and
more necessary that third party links have taken a high profile
with, for example, the advent of special advisers close to Ministers
who often have a direct influence on policy-making; with businessmen
operating routinely from within the Cabinet Office on government
policy programmes; and with a mixed economy of government in which
private companies provide of public services and facilities through
such initiatives as PFI.
43. The continuous activity lower down the scale of government
than No. 10 Downing Street requires openness and scrutiny. Recently,
for example, Dr Richard Baldwin, chairman of Mercia Healthcare,
a company specially created to provide hospitals and non-clinical
NHS services under PFI, gave evidence to the Health Committee.
He testified that the "dialogue that goes on with the NHS
Executive is extremely close", and that he participates in
several ad hoc working groups with the Executive. He described
the process as an "open exchange", but that exchange
is confined to the officials and business people involved. Suchad
hoc arrangements are multiplied hundreds of times over within
the processes of British government.
44. The need to retain the confidence of private business
is the major concern of most government departments and organisations,
most notably the DTI, and they express fears about the damage
which might be done to regulatory or monitoring functions, and
government contracting and procurement. The draft Bill clearly
gives priority to protecting commercial information which is "likely
to prejudice the commercial interests of any personincluding
those of the public authority holding the information"; information
provided in confidence is given class exemption; and a class exemption
applies to information obtained by all regulatory bodies, including
those which oversee people's safety. It seems likely that private
business is likely to continue its privileged an influential access
to government, undisturbed by disclosures under this Government's
FOI and other access legislation.
45. Here we compare the buttoned-down approach of this
Government with law and practice in the United States. The comparative
chart attached to the draft Bill is seriously misleading on the
position on commercial confidentiality, business regulation and
control, and third party links in the USA. This is probably because
officials have looked only at the US FOI Act and misunderstood
its role. "Due process", openness and disclosure are
built into public life in America through the constitution and
a variety of access laws. The FOI Act is arguably the weakest
of all the US access laws, as it operates as a catch-all back-up
to give access to documents which are not otherwise available
through other means.
46. In the United States, all government dialogue with
other parties is open. Government is allowed to keep its own internal
secrets, at least for a while, but it is not allowed to pick and
choose who it talks to or makes deals with. Once, say, PowerGen
has been invited into talks, every commercial organisation, group
or individual with an interest is entitled in law to know what
is being said. Commercial and third party contacts with the federal
executive, regulatory bodies, other public bodies, quangos and
Task Forces are all open, though of course public authorities
and commercial interests often battle hard to keep information
secret. This regime of openness extends far beyond formal documentation.
Minutes of meetings, contacts, telephone calls and logs, e-mail
traffic, submissions, officials' notes of meetings or conversations,
diaries, are all caught.
47. Complete records are important. For example, in the
United States a citizen like Maurice Frankel could request and
receive the names of all persons contacted by the Home Secretary
regarding FOI and copies of all materials submitted to the FOI
by third parties . This may very well reveal, for example, unknown
influences upon the contents of the draft Bill, or the source
of the false understanding of US practice. Complete records also
perform another function: they indicate what a government has
failed to do. It could be that the Home Secretary simply failed
to contact key experts in the field. The public should know this.
It would be a good start for the Home Secretary and the Select
Committee to begin the open information regime by releasing all
documents (calls, contacts, minutes of meetings, diaries, submissions)
related to FOI.
48. A proposal of this kind may seem unheard of in the
UK. But nearly every US federal agency and all state agencies
must operate in the public eye under such a broad and detailed
regimeand, significantly, the courts too are open forums.
These open regimes in USA are not created under the FOI Act. They
devolve from the US Constitution's "due process" clause,
US Supreme Court case law and code in all 50 stateslawand
precedent now nearly 100 years old. They derive in part also from
the enabling statutes for agencies and three other postwar access
laws. The enabling statutes set out the ways and means for achieving
openness, which mostly follow a quasi-judicial model in which
the evidence they take is made generally available, as well as
all the documents and materials relating to government decisions
(and not in summary form).
49. The greatest difference between the position in the
UK and USA is in the area of commercial confidentiality and business
regulation and control. The claim in the draft Bill paper (page
21) that the United States has the same class exemption as that
proposed for "Investigations and proceeding conducted by
public authorities" could not be further from the truth.
In general, US regulatory authorities must conduct the entirety
of their investigations in public; closed sessions, private meetings
and confidential documents are banned outright.
US REGULATORY AGENCIES
50. Consider for example the setting of electricity prices
in each state. The regulators are prohibited from meeting utility
companies behind closed doors. All the utilities' presentations
to the regulators must be made in public sessions and complete
transcripts are available for review by any citizen. All the documents
given by the privately-owned utilities to the regulators are open
for public inspection, down to the fine details of their internal
financial reports. So the sales projections, investment decisions,
projected profits and prices of the electricity companies can
come under the scrutiny of consumers and competitors alike. There
is no harm test! Does the release of this information harm regulated
companies. Of course it does. That is the whole point. Rival companies
can criticise a company's practices; consumers use the data to
demand lower prices. In one case, information taken from the boot
of an executive's car was used to expose improper accounting practices,
forcing the power company to reduce prices by several million
dollars. This US power company also operates in Britain where
it can conceal such information!
51. The regulatory agencies are also required to divulge
full information. They must provide all their calculations and
a statement of all documents (with copies) it has received on
which their decisions are based. Failure to disclose every document
results in automatic reversal of regulatory decisions by the courts.
Consumers (and the regulated company) have the right to ask the
regulator to make available all "working papers"ie,
scraps of paper with calculations, alternative proposals not used,
etc. The prevailing intent is that nothing is concealed, no private
meetings take place, all proceedings are on the public record.
52. Thus, agencies such as the Energy Regulatory Commission,
Occupational Health and Safety Administration, Evironmental Protection
Agency, Nuclear Regulatory Commission, Federal Trade Commission,
and the Controller of the Currency (bank regulator) are open booksand
so too are the records of the companies they regulate. This account
hardly comports with the Home Secretary's statement that the US
bars information from "investigations and proceedings of
53. Further, despite the Consultation Paper's claim there
is no exclusion for "information provided in confidence"
in the USA. The concept is repugnant to American democracygiving
to private parties the right unilaterally to use the powers of
government to protect its financial interests. A US utility which
turns over detailed information may fight, as many do, to keep
the material secret. But government has no choice but to reveal
54. The original FOI White Paper defended such closed
communications between corporate powers and government on the
specious grounds that, "Relations between public authorities
and the private sector need to rest on two-way openness and trust."
But that is what MPs, as the people's representatives, should
fear most. In the "Lobbygate" affair last July, The
Observer reported that lobbyists held secret sessions with
Cabinet advisers which resulted in the lifting of a proposed £20
million car park tax on supermarkets. We can assume these meetings
between government and private enterprise had plenty of "two-way
openness and trust"which it is the business of FOI
55. There is in fact a hugh gulf in law, philosophy and
practice between actuality in the USA and the Home Secretary's
proposals. The Consultation Paper illustrates this gulf time and
time again. Take, for example, para. 5 praising the openness of
the DTI in issuing "summaries of four consultancy studies
commissioned by the Government" on utilities. In the USA,
this initiative would be considered unacceptable censorship.
The studies themselves, in their entirety, must be released,
not summaries. In the US it is understood that there is no such
thing as "more transparency"either government
is transparent or it is not.
56. We appreciate that the Government is concerned to
protect British industry. But for close to 100 years the USA has
taken the view that both society and private business have a stronger
interest in the free flow of commercial information. The American
economy and competitive position of its private sector do not
seem on balance to have suffered unduly. And commercial openness
unquestionably serves the public interest.
57. One positive aspect of the original White Paper was
the broad range of public bodies which would be obliged to adopt
FOI practice (para 2.2, Cm 3818). The draft Bill allows for similar
breadth in approach (clause 2), but most public bodies are to
be included within the scope of legislation under schedule 2 by
way of Ministerial order. Thus, all NDPBs, Task Forces, public
corporations and many other public bodies could all be obliged
to give information along with those set out in schedule 1.
58. We have concerns both about the provisions for such
bodies in the draft Bill and about the possibility of retreat
from the goal of comprehensive coverage. First, many of the policies
and decisions of such bodies could fall under the exemption protecting
central government policy-making from disclosure, and especially
so in the case of advisory NDPBs. Similarly, information on their
dealings with exernal commercial organisations is likely largely
to continue to be withheld. We have already given evidence on
the undesirable nature of these provisions.
59. The catch-all clause 28 will add to the powers of
all such public bodies to withhold information which, in their
opinion, could "prejudice the effective conduct of public
affairs"; other discretionary powers, such as that which
allows authorities to insist on knowing what requesters intend
to do with information and to restrict its dissemination; and
the general lowering of the harm test from "substantial harm"
to "prejudice" would give real powers to block or delay
disclosure to those public bodies which wished to restrict information
about their activities, or to avoid the release of information
which would embarrass them or reveal misconduct or poor policy
decisions. Further, as we argue above from the law and practice
in the USA, even a tough FOI law on its own would not be enough
to make such bodies genuinely accountable; additional legislation
on public access to meetings, rights to be heard by their boards,
and so on, is required.
60. We also have a particular concern about the actual
breadth of coverage in practice. The Democratic Audit has monitored
arrangements for the accountability of NDPBs, or quangos, since
1993. In EGO-TRIP, the Audit revealed that only one in
seven executive NDPBs came under the jurisdiction of the Parliamentary
Commissioner for Administration (or any other ombudsman). The
Conservative Government under John Major pledged to bring every
executive NDPB under the PCA, unless "there are valid reasons,
specific to its particular circumstances, for excluding it",
as well as important advisory NDPBs. The Labour Government renewed
this unfulfilled pledge in the White Paper, Quangos: Opening
the Doors (Cabinet Office/OPS; all executive NDPs would be
brought under the PCA, "unless there were exceptional reasons
for not doing so [our emphasis]", along with advisory NDPBs
which had "direct dealings with the public" (para 31).
61. In February 1999, the Cabinet Office announced that
111 executive NDPBs and 47 advisory bodies would be made answerable
to the PCA. In fact, 83 advisory NDPBs were included. However,
overall, the Government raised the proportion of executive NDPBs
subject to the PCA from about one-third to nearly three-quarters
(73 per cent), and only a minority of advisory NDPBs (15.5 per
cent). Some 77 executive NDPBs remain outside the PCA's remit,
and they cannot all reasonably qualify as "exceptional"
cases. It is apparent that insufficient rigour has been applied
in the review.
62. The White Paper did not define the criterion for
bringing in advisory NDPBs, and departments did so ungenerously.
Some departments added no advisory bodies at all. In 1995, the
Democratic Audit chose 20 advisory NDPBs for study for their significance
to the public interest and the consequent need for transparency
and accountability on their part. Of these, only three are now
made subject to the Ombudsman; the other 17 remain unconstrained
by his jurisdiction. These advisory bodies deal with BSE and Pesticides
(MAFF); Nuclear-Powered Warships and Nuclear Weapons (MoD); Environmental
Pollution, Hazardous Substances, Radioactive Waste Management,
and Releases to the Environment (DETR); the Carcinogenicity, Mutagenicity
and Toxicity of Chemicals in Food, Consumer Products and the Environment
[three committees], Microbiological Safety of Food, Medical Aspects
of Food and Nutrition Policy, Medical Aspects of Radiation in
the Environment, NHS Drugs, and Safety of Medicines [two NDPBS]
(Health). Some clearly do have "direct dealings" with
the public, and their advice directly affects the public in vital
areas of their daily lives. The five Task Force NDPBsBetter
Regulation, Football, Disability Rights, New Deal Skillsare
63. The present position is inconsistent and unsatisfactory.
Analysis of the decisions on individual NDPBs suggests that certain
departments were more willing than others to subject the bodies
to PCA scrutiny. In certain individual cases, a desire to avoid
public complaint, vexatious or otherwise, may well have been a
motive. The overall impression is that the processes of discussion
within government were arbitrary rather than systematic and gave
much, probably decisive, weight to departmental views. Our fear
is that negotiations with departments and the bodies themselves
over FOI might yield a similarly uncomprehensive, and perhaps
long-drawn out, result.
PART 3: WHAT
THE USA AND
Time and space do not permit a detailed listing of the categories
of information available in the USA. The question is, will similar
documents now become available in the UK?
1. The Volvo Price-Fixing Records (Investigation by a
This month, the Office of Fair Trading determined that Volvo
UK had "colluded with dealers" to fix pricesa
"disgraceful exploitation of customers," according to
the OFT press release. No other information was given. Other than
a three-page highly general consent statement by Volvo, the OFT
has sealed the entire investigative file, refusing for example,
to turn over to newspapers the list of dealers against whom OFT
had evidence, the nature of the evidence, the estimated damage
caused by the fraud (rumoured to be £4,000 per vehicle).
As a result, approximately 100,000 citizens cannot obtain compensation.
Under the proposed FOI, will this information become available?
By contrast, in the United States, all competition investigation
material becomes public. In the case of the lysine (pig feed)
cartel case, any member of the public may listen to the FBI's
237 wiretaps of the conspirators and their internal company memoranda.
(Interestingly, some of the recorded meetings took place in Londoninvolving
British perpetrators conspiring against the British public. US
citizens, but not British subjects, may obtain this material,
no matter if it causes harm to the companies involved.)
What investigative material will the new FOI make available?
2. "Judicial Functions"Open Court Records,
Pleadings and Evidence
The televising of the O J Simpson murder trial was a spectacular
example of open court proceedings which gave rise to controversy
in the UK. But more fundamental to the public welfare is that
pleadings in private actions between two parties or by government
authorities against a commercial interest are made publicly available,
as well as most depositions and documentary evidence subpoenaed.
American journalists would unanimously agree open court pleadings
may be more important than the FOI law itself. (Again, the Home
Office has this wrong. The courts are exempt from FOI because
they were already open agencies prior to the FOI law.) For example,
the Microsoft case pleadings, internal company documents (highly
confidential and proprietary) were made public prior to and during
the case. This has caused substantial harm to Microsoft. Competitors
used the information to plot against Microsoft and even to sue
the company. That is a healthy conclusion. Markets and democracies
run best on open information.
3. Task Forces"Policy Formation"
The New Labour government makes policy based on endless meetings
and dialogue between departmental officials and organised interests;
through quangos, executive agencies, Task Forces, and other public
authorities; by way of consultants' reports, private meetings
with industry and pressure groups, requests for comment, consultation
processes of varying significance, and the rare public hearing.
Will the new FOI law open up these sources of information
and advice, ensuring for example that citizens can obtain all
minutes of Task Forces and other consultative meetings, written
submissions by parties and the memoranda or handwritten notes
of government officials attending?
All this is available under FOI laws in the USA, which has
its share of Task Forces and intermediaries between industry and
government. There is one hugh difference: all meetings between
government and third parties are supposed to be publicly acknowledged
and open to public scrutiny. That is why the courts fined the
White House $300,000 and threatened to put one of its chief advisers
in prison when the US government refused to make public the records
of meetings of Hillary Clinton's Task Force on draft national
health insurance plan. The public were entitled to know the identities
of consultants and advisers, to see telephone logs, submissions
and related documents.
Let us however note a crucial distinction made in US FOI
law: the difference between internal government discussion between
Ministers and their officials (which are subject to elaborate
rules of disclosure) and discussion between a government and third
parties. The moment a third party is involved, say, a meeting
with a private health industry executive or professor of public
administration, the matter becomes public. Does this reduce "frank
discussion" between government and industry. Hopefully so.
The public purse, the public health or the general economy's well-being
is at stake in these mattersand government may not choose
to enter into private dialogues with public consequences.
4. Lobbygate v Chinagate: Phone Logs, Diaries and Meetings
The Observer's Lobbygate story last July would have
had a quite different outcome had the Government been required
to release the telephone records, notes of meetings and diaries
of Ministers, Policy Unit advisers and special advisers relating
to their contacts with third parties (lobbyists, industrialists,
and others). But such documents were all kept under seal. This
contrasts with the outcome in the Democratic Party fund-raising
scandal, "China-gate", where US FOI laws revealed key
details of the affair. One interesting example of material received:
the Assistant Secretary of Commerce denied he had meetings with
executives of a company with whom he had contracts before entering
office. But FOI requests required him to reveal his telephone
records which showed several calls to these executives and documents
in the file of the Minister regarding contacts with them. As The
Observer reported, these same executives had been accused
by sources of secret contacts with Downing Street regarding the
energy sources White Paper. But the telephone records and diaries
of UK officials, unlike those in the US, are confidential.
Ironically, the Home Office consultation document on the
FOI bill singles this White Paper out as an example of openness,
whereas informed newspaper reports identify it as the product
of intense and secretive lobbying by interested parties. What
meetings and discussions did take place? Who called whom? The
public has the right to know.
Will the proposed FOI Act open up telephone records, diaries
and meeting notes of government policy makers with industry and
other third parties?
5. National SecurityThe Pentagon Papers and Pinochet
The Pentagon Papers were the US Defense Department's analysis
of the status of a war in the midst of the conflict, yet the US
Government failed to stop them from being published. The "Pinochet
Files"20,000 pages of CIA documentsmay embarrass
the US Government, they deal with issues of international relations
and defence; and they have certainly harmed a third party (the
case against General Pinochet is substantially based on these
publicly-released files). But the US government was forced to
release them, even including such disturbing items as the CIA's
preparation for Salvador Allende's inauguration: "Sub-machine
guns and ammo being sent by regular courier leaving Washington
0700 hours . . . ." The National Security Archives, a private
foundation, did have to fight in court for the documents, but
the courts ruled that any embarrassment caused to the Government
or its allies, or the mere frustration of policies, was not grounds
to withhold the documents.
Will the UK Government's FOI Act provide new rights to national
security documents? Will Ministers follow the US lead and release
Britain's files on dealings with General Pinochet?
6. The Monsanto Files: Government reviews of Health and
The US Government obtained confidential European documents
on genetically-modified foods which it passed to Monsanto corporation.
This information was gleaned from the personal notes to file of
a Canadian health ministry official regarding a telephone call
from Monsanto. The Canadian agency gave up the document (reluctantly)
and all copies of correspondence with Monsanto under Canada's
Access to Information law.
Will the FOI Act open the files of agencies scrutinising
the health and safety of new products and procedures?
In the US, the technical information from safety reviews
of drugs and GM foods are public documents. The "proprietary
secrets" of Monsanto and other companies are therefore revealed,
but the US government and agencies must reveal documentation used
in its deliberative process provided by outside parties. Monsanto's
recourse is to protect itself through patent and contractual arrangements.
It is not government's role to keep secrets which stifle public
analysis of technical information.
7. Health, Safety and Environment: Nuclear and Commercial
The Government's FOI proposals will exclude several areas
of health and safety from public review. The most dangerous exemption
is the sealing of nuclear plant records. The US rules are exactly
the opposite. The more the public is at risk, the more information
must be revealed to permit independent review of facts and evidence
to help identify dangers. So, for example, every US nuclear plant
has a PDR"public document room"which contains
all documents related to the plant, from financial records to
blueprints for steam valves. A typical PDR contains several million
documents which anyone may see. This provision has caused harm
to companies, as anti-nuclear groups have used the information
gleaned to apply pressure to re-build or close several nuclear
plants. This is FOI at its best.
In a crucial case, confidential documents were stolen from
a nuclear plant and passed to an anti-nuclear activist. The courts
ruled the activist could keep and publish them. Their reasoning
that applies as well as to pipeline safety, drugs testing, novel
foods, and other contentious environmental and health issues:
"We believe the public has an overriding interest in
the dissemination of information related to costs, construction
and safety practices of nuclear power plants. The files contain
information about federal law violations, falsifications of documents,
and intimidation and harassment of power plant inspectors . .
. release of the information contained within the files is one
manner by which the manager of a potentially dangerous plant can
be held accountable to the public."
The ruling began with a general statement of principles well
worth adopting in the UK: "The United States Supreme Court
has stated that society has a strong interest in the free flow
of commercial information."