Select Committee on Public Administration Memoranda


MEMORANDUM 34

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 parts:

    —  PART 1 deals with the public interest in freedom of information;

    —  PART 2 analyses specific failings of the draft FOI bill; and

    —  PART 3 compares and contrasts provisions in the USA and UK for the disclosure of particular kinds of information.

PART 1:  DEMOCRACY, ACCOUNTABILITY AND PUBLIC INFORMATION

  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 at—and between—elections. 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 safeguards.

  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 domain.

TRADITIONS OF TRUST AND HONOURABLE SECRECY

  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 is informal.

  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 information—for example, on medical drugs—is 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 nor uncontaminated.

THE ADVERSARIAL ASPECTS OF FREEDOM OF INFORMATION

  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 information—in 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 them.

THE CASE FOR STRONG POWERS AND EFFECTIVE PREPARATION

  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 world—for 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 secrecy".

  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.

THE DEFECTIVE CULTURE OF OPENNESS IN THE UK

  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 OF DISTRUST

  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 auxiliary precautions".

  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.

WIDENING THE CONCEPT OF PUBLIC INTEREST

  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, declaring:

    "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.

Table

PUBLIC OPINION AND POWER OVER GOVERNMENT DECISIONS

How much power
should voters have
over government
policies between
elections?
And how much power
do people think they
actually have?

A great deal31 per cent 2 per cent
A fair amount47 per cent 14 per cent
Little12 per cent53 per cent
None4 per cent26 per cent
Don't know6 per cent 6 per cent


  The discrepancy between people's expectations and their assessment of reality is striking—and 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 government".

  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 public interest.

PART 2:  COMMENTS ON PARTICULAR ASPECTS OF FOI IN THE UK

  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.

 THE FORMULATION OR DEVELOPMENT OF GOVERNMENT POLICY

  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 released.

  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.

COMMERCIAL CONFIDENTIALITY AND EXTERNAL LINKS

  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 and scrutiny.

  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 person—including 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.

COMMERCIAL AND GOVERNMENT OPENNESS IN THE USA

  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 regime—and, 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 states—lawand 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.

THE OPEN REGIME OF 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 books—and 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 public authorities".

  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 democracy—giving 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 it all.

  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 to ruin.

  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.

NON-DEPARTMENTAL PUBLIC BODIES, TASK FORCES, AND OTHER PUBLIC BODIES

  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 NDPBs—Better Regulation, Football, Disability Rights, New Deal Skills—are also excluded.

  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 DOCUMENTS ARE DISCLOSEDIN THE USA AND UK?

  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 Public Authority)

  This month, the Office of Fair Trading determined that Volvo UK had "colluded with dealers" to fix prices—a "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 London—involving 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 matters—and government may not choose to enter into private dialogues with public consequences.

4.   Lobbygate v Chinagate: Phone Logs, Diaries and Meetings Notes

  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 Security—The Pentagon Papers and Pinochet Files

  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 documents—may 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 Safety

  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 Secrets

  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."

July 1999


 
previous page contents

House of Commons home page Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 1999
Prepared 16 August 1999