GOVERNMENT RESPONSE TO THE THIRD REPORT
SELECT COMMITTEE ON PUBLIC ADMINISTRATION (SESSION 1998-99)
ON THE FREEDOM OF INFORMATION DRAFT BILL
CONCLUSIONS AND RECOMMENDATIONS
We welcome the publication of the draft Bill,
and the Government's commitment to legislation on Freedom of Information.
Once the comments we have made, and the comments made by others
to the Home Office in the course of the consultation process have
been taken into account, we would expect to see a Bill formally
introduced into Parliament in the course of the next Session.
In our view, a Bill that is improved in the way we suggest will
have a major and beneficial effect on the way government in this
county is run (paragraph 4).
The Government welcomes the Committee's comments.
The Government has responded below to each of the Committee's
recommendations and will introduce legislation into Parliament
as soon as the legislative programme allows.
We note and endorse the recommendation of the
Social Security Committee that where the Government plans to publish
a draft Bill and invite comments on it, it should always do so
before Easter, if it hopes to get the Bill into the following
year's legislative programme. We further recommend that the Government
should then invite comments within two months, allowing a committee
the remainder of the time up until the next summer recess to take
evidence on the basis of the comments which have been received.
We would expect this to become the normal pattern in future when
the Government seeks comments on a draft Bill (paragraph 9).
The Government recognises the Committee's desire
to have sufficient time to consider Bills in draft and to comment
on any public consultation on draft Bills. Whilst the Government
will make every effort to bring forward draft Bills as early in
the Parliamentary Session as possible, it cannot unfortunately
guarantee that work will be completed before Easter in every case.
A well-constructed Freedom of Information regime
is a vital instrument to enable members of the public to:
- participate in an informed way in the discussion
of policy issues, and so improve the quality of government decision
- find out what information government and other
public bodies hold about themselves;
- hold government and other bodies to account
The Government agrees with the first and third points
made by the Committee. In addition, a well constructed Freedom
of Information regime should also avoid hindering the effective
conduct of public affairs.
It is however the Data Protection Act rather than
the Freedom of Information regime which will continue to govern
what access individuals have to information about themselves.
Data Protection legislation has been in force in the United Kingdom
since 1984 and the measures were strengthened in the new Data
Protection Act 1998. The draft Bill provides further extension
of data protection rights of access but reinforces the primacy
of the Data Protection Act as the means of obtaining information
We recommend that good international practice
should be followed unless the Government can demonstrate that
it has caused problems. Any departures from such practice should
be explicitly justified (paragraph 15).
Whilst there are useful lessons to be learnt from
other FOI regimes, overseas Freedom of Information legislation
does not provide a uniform model and experience of the various
regimes is mixed. In practice most overseas legislation is primarily
concerned with access to personal information about the applicant
(typically 80% of requests are for information of this kind),
and the UK draft Bill does not deal with this kind of information.
Therefore, there are limits to the comparisons which may be drawn.
The key principles on which Freedom of Information
law should be constructed in order to give the benefits we have
set out are:
- There should be a clear presumption in favour
of disclosure as a right of citizenship;
In general the Government
favours the principle of disclosure and clause 8 of the draft
Bill does create a de facto presumption in favour of disclosure.
But other rights also have to be taken into account. The right
to a private life is a basic human right safeguarded by the European
Convention on Human Rights. The EU Directive on Data Protection,
given effect in UK law by the Data Protection Act 1998, cannot
be overturned by national law. There are rights of confidentiality
which it is essential to protect if good government and links
with business are to be maintained. The Bill therefore provides
grounds for exemptions to the right to know to protect these other
rights, as well as on other grounds necessary to protect the public
interest and the effective conduct of public affairs.
- The public interest in disclosing particular
information should be balanced against the prospect of harm in
doing so, with decisions about where the balance lies in particular
cases being transparent, and reviewable by an independent person
whose decisions are enforceable;
The Government agrees that
the public interest in disclosure needs to be carefully balanced
by Ministers or other qualified persons, against the need for
the exemption. The independent Information Commissioner will have
an important role in advising on this. In appropriate cases the
courts can intervene, through judicial review.
- The right of access to information should
apply as broadly as possible, and exemptions to it should be drawn
as narrowly and precisely as possible;
The Government agrees. This
has been a key consideration in drafting the Bill.
- A statutory Freedom of Information regime
should be based, as much as possible, on enforceable rights of
access to information; not on undertakings to consider the discretionary
release of information;
Apart from the limited number
of areas covered by a class exemption, the Bill does give the
public an enforceable right of access to information.
The Government believes that there is a balance to
be struck between rights and discretions in this area and that
the draft Bill, as amended in the light of the responses set out
in this document, achieves the right balance.
- The right to information should be simple
to understand, to access and to exercise, and it should be possible
to obtain information reasonably speedily and at reasonable cost;
- There should be independent systems of reviewing
and appealing against decisions which balance the interests of
the applicant, authority and other parties (and the public interest)
fairly and effectively (paragraph 16).
The Government proposes an
independent Commissioner and Tribunal with wide powers to enforce
the provisions in the Bill.
Scope of the Bill
We strongly welcome the extensive coverage of
the Bill and recommend that it is applied to Parliament (as it
is proposed in the Consultation Document) (paragraph 24).
There is agreement in principle that Parliament should
be covered and details of the scheme are now being finalised.
Disclosure in the public interest
If clause 14 is to remain, we recommend that subsections
(4)(b) and (6) be removed (paragraph 40).
The Government believes that the provisions set out
in clause 14 are an essential part of the Freedom of Information
regime. However, it agrees that subsections 4(b) and 6 can be
removed without detriment to the regime.
If clause 14 is to remain, we believe that it
should contain three further provisions which would encourage
authorities to exercise their discretion wherever possible in
favour of openness. The first is an explicit statement that unless
there is a compelling argument to the contrary the public interest
should be regarded as coming down in favour of disclosure. In
effect, this would be a purpose clause which would explicitly
rebalance the Bill in favour of disclosure (paragraph 41).
The Government agrees. We will amend clause 14 to
include a specific requirement on public authorities, when considering
the exercise of their discretion to disclose, to balance the public
interest in favour of disclosure against the public interest in
withholding the information, as set out in the exemptions in the
Bill. In addition, the Government's intention is to create a change
of culture within the public sector to promote greater openness.
The delivery of this change of culture will form an important
part of the success of the legislation.
The second of our proposed modifications to clause
14 would be to require authorities to give reasons for their decisions
not to disclose, unless the giving of reasons would itself disclose
the information which had to be protected (paragraph 42).
The Government agrees with this recommendation, and
will amend the Bill accordingly.
The third modification we propose to clause 14
would be to strengthen the ability of the Commissioner to criticise
the authority's decision under the discretionary disclosure provision
by giving her the power not only to require the authority to take
a decision under the clause and to specify the matters to which
the public authority must have regard in making the decision (under
clause 45 of the Bill), but also to recommend the decision it
should come to. Backed by the power to issue a practice recommendation
under clause 41, the Commissioner would then have some ability
to enforce openness in a practical way (paragraph 43).
The Government agrees with this recommendation, and
will amend the Bill accordingly.
We believe that it is preferable in Freedom of
Information legislation not to leave the question of whether disclosure
of information is in the public interest to the discretion of
the authority which holds the information. We recommend that,
for most of the exemptions, instead of the discretionary provision
in clause 14 there should be a requirement to weigh up the harm
caused by disclosure against the public interest in disclosure.
The judgement arrived at by the authority could then be reviewed,
and revised, by the Information Commissioner. Any exemptions which
do not contain the requirement to balance prejudice against the
public interest should be subject to the discretionary disclosure
provisions of clause 14, also reviewable by the Information Commissioner
The public interest in disclosure needs to be carefully
balanced by Ministers, who are accountable to Parliament, or other
qualified persons against the public interest against disclosure
set out in the exemptions in the Bill. In appropriate cases the
courts can intervene through judicial review. Nonetheless the
views of the Commissioner will also be an important factor to
take into account and the Government will amend the Bill to ensure
that these views are heard.
We recommend that the Commissioner's powers in
relation to publication schemes are strengthened (paragraph 46).
The Government agrees with this recommendation and
will amend the Bill accordingly. The outcome of this amendment
will be that public authorities will be required not only to publish
and apply such schemes but also to comply with them.
We recommend that the obligation to publish information
be strengthened in the Bill. It should specify more clearly the
type of information that authorities will be required to publish.
In particular authorities should be obliged to publish internal
manuals and guidance as a matter of statutory duty (paragraph
In practice it would be very difficult to be sufficiently
precise about what should be published, particularly in a way
that would provide the necessary certainty for the public authority.
It is likely that the Commissioner will publish guidance on the
kinds of information she will expect to see in these schemes.
The existing guidance on the Code of Practice on Access to Government
Information which, in relation to paragraph 3(ii) of the Code,
says "Departments should plan for the release of all the
guidelines and other material used in their dealings with the
public. This need not mean publication where departments consider
that the level of interest would not justify it, or where the
guidelines in question are voluminous, but eventually the aim
should be to make all guidelines available for purchase or inspection
on request". However, all authorities will be required to
get their Publication Scheme approved by the Information Commissioner.
The Government recognises that this is an important detail of
the overall scheme for Freedom of Information and considers that
its proposal is a practical one.
Reasons for administrative decisions
We recommend that the Bill should contain a clear
statutory duty to give reasons upon request for administrative
decisions, quite separate from publication schemes (paragraph 50).
There is already a statutory duty in the Bill which
requires public authorities to disclose information on request.
This applies to reasons for administrative decisions unless they
are otherwise exempt from disclosure. Therefore, whilst the Government
accepts the principle of this recommendation, it does not consider
that any amendment to the draft Bill is necessary to put it into
Codes of Practice
We recommend that the Government reconsider the
balance between dealing with certain administrative provisions
on the face of the Bill and dealing with them in a Code of Practice
The Government is satisfied that the balance between
statutory obligations set out on the face of the Bill and the
Code of Practice is correctly set in the draft Bill.
We recommend that in future exercises of this
kind, proposed Codes of Practice should normally be published
with the draft Bill. We recommend that the codes in draft should
be made available when the Bill itself is introduced (paragraph
Whilst recognising the desire of the Select Committee
to have as much information available as possible at draft Bill
stage, in practice the Code of Practice cannot be finalised until
after the Information Commissioner takes office following Royal
Assent and acquires the vires to approve the Code. The Government
will consider what work in progress on the Code it can usefully
publish when the Bill is introduced into Parliament.
We recommend that the Bill should contain a clear
statement indicating what it is intended to achieve and indicating
a presumption in favour of disclosure (paragraph 59).
The Government proposes to amend the long title of
the Bill and to rearrange the clauses in the Bill so that what
was clause 8, which the Government hopes is a clear statement
of the Bill's intention and creates a presumption in favour of
disclosure, subject to the exemptions, becomes clause 1. The Government
believes that these amendments, together with the other amendments
proposed in the light of the responses set out in this document,
achieves the correct balance between openness and other competing
rights such as privacy and confidentiality.
We accept that there is a role for class-based
exemptions in a few narrowly-defined areas where there may be
a high demand for information and a low likelihood that it will
ever be disclosed or where there is a clear need for definite
protection. The security and intelligence services, and Cabinet
papers, are obvious examples. There is an argument for class-based
exemptions in areas where the slightest possibility of disclosure
could be directly detrimental to important public interests. But
such exemptions should be very few; they should be clearly defined;
and they must be clearly justified (paragraph 63).
The Government believes that the class based exemptions
set out in the Bill are indeed small in number, clearly defined
and are fully justified.
We accept that "prejudice" is to be
preferred to "harm" on the grounds that it is more common
in other legislation (paragraph 65).
The Government notes and welcomes this recommendation.
The harm test
There is no reason why different tests should
not be used in different circumstances, as they are in much of
the overseas legislation. We believe that it would be right under
certain of the exemptions to say that only "substantial"
or "significant" prejudice should be allowed to prevent
disclosure. We recommend that the harm tests for the exemptions
in clause 22 (international relations), clause 23 (relations within
the UK), clause 24 (economy), and clause 34 (commercial interests
) should refer to "substantial" or "significant"
"prejudice". We also recommend that for each of the
contents-based exemptions the harm caused by disclosure should
be explicitly balanced against the public interest in disclosing
the information (paragraph 71).
The Government considers that the prejudice test
as drafted in the Bill states their intentions clearly and is
consistent with the way this term is used in other legislation
such as the Data Protection Act 1998 and the Local Government
Act 1972. The Government believes that to preface the word 'prejudice'
within the test with 'substantial' or 'significant' would add
an unquantifiable standard which may itself cause confusion. The
Government proposes to include, within clause 14, a greater steer
to public authorities in balancing the public interest in the
exercise of their discretion to disclose.
Information accessible by other means or intended
for future publication
We recommend that authorities should be encouragedperhaps
through the Code under clause 38to adopt charging policies
which recognise that certain information should be available to
the public free of charge; and that (perhaps through the publication
schemes) the Commissioner should oversee the charging policies
adopted by authorities in order to confirm that information is
"reasonably accessible" (paragraph 72).
Full guidance on the application of fees and charges
will be giventhough the Government wants to consider further
the precise means of achieving this. Some information is already
available free of charge and the Government agrees that should
continue. However, costs are relevant and it is important to ensure
that accessibility in the short term is not at the expense of
sufficient funds to ensure availability of information in the
Authorities should be encouraged, through the
Code of Practice under clause 38, to use the exemption for future
publication in a limited way (paragraph 73).
The wording of the clause makes clear the intention
that the exemption should be used only when it is reasonable to
withhold disclosure until publication, therefore usage of the
exemption is limited. The powers that would be conferred on the
Information Commissioner, by virtue of Part IV of the Bill as
drafted, should be sufficient to prevent any abuse of this exemption.
We acknowledge that there is little point in giving
a right of access to information held by or relating to the work
of the security and intelligence services when it will be in practice
ineffective (paragraph 77).
The Government agrees with this recommendation.
We recommend that the security and intelligence
services be obliged to draw up publication schemes under clause
6 (paragraph 77).
The Government does not agree. The agencies already
publish such information as they can which would not put their
work at risk. The Government does not believe that fixed statutory
obligations on the agencies can be justified.
We recommend that, in place of clause 25, there
should be a specific and tightly drawn class exemption for informants
We believe there is no need for the comprehensive
exemption for investigations in clause 25. In particular,
the fact that the exemption will continue to be effective well
after an investigation is completed is unnecessary for most purposes.
The information the exemption covers is already covered by the
clause 26 law enforcement exemption which itself protects the
investigatory functions of authorities. If it is felt necessary
that there should be further protection for investigations, this
might be provided by means of an exemption for information which
would prejudice the conduct of existing or future investigations,
or legal proceedings, as appears in other Freedom of Information
legislation abroad (paragraph 82).
The Government agrees that the regulatory law enforcement
provisions , currently contained within clause 25 (2) of the draft
Bill, need not be the subject of a class exemption. It is considered
that these regulatory investigations do, however, require some
protection and, therefore, the Government propose to give these
the protection of a prejudice tested exemption. The Government
also agrees that it is essential to protect information relating
to informants, and that this protection should be available in
perpetuity. The class exemption for this information will, therefore,
remain. The Government also considers it necessary that criminal
investigations and proceedings, currently covered by clause 25(1),
have the specific protection of a class exemption. This exemption
would continue after the conclusion of the investigations on prosecution.
This is to preserve the judicial process and to ensure that the
criminal courts remain the sole forum for determining guilt. Clause
14 would, of course, apply to information exempt under this head.
Decision making and policy formulation
We accept that communications between Ministers,
Cabinet and Cabinet Committee proceedings, as well as the provision
of advice by law officers, should be covered by a class-based
exemption in the Bill. We doubt, however, that information relating
to "the formulation or development of government policy"
is a sufficiently well-defined class. Nor do we believe that a
class-based exemption for the operation of Ministerial private
office is appropriate. We recommend, instead, that information
that needs to be protected under these two headings should be
covered under the contents-based exemptions in subsection (3)
We recommend that the Commissioner be enabled
to test the correctness with which the exemption for the deliberations
of public authorities is claimed, as she will be for the other
exemptions; and that the subsection be subject to an explicit
public interest override (paragraph 90).
We therefore recommend that the exemption for
decision-making and policy formulation should specifically not
be taken to apply to purely factual information held by public
authorities, nor to analysis, if that information has been created
in order to inform policy decisions, and that this distinction
should be clearly drawn in the Bill (paragraph 93).
The Government believes that it is essential that
the class based exemptions for the formulation and development
of Government policy and the operation of Ministerial private
offices remain. Freedom of Information must allow for the efficient
and effective conduct of public affairs. Where a prejudice test
is appropriate, the Government believes that the views of Ministers,
or relevant qualified persons, should only be capable of being
overturned if they are unreasonable. Though the Government does
not agree that the exemption for decision making and policy formulation
should exclude factual and background information, it recognises
that there may be less sensitivity about the disclosure of such
material. The Government therefore proposes to provide for an
express condition within the discretionary disclosure clause,
requiring Departments specifically to consider the public interest
in the disclosure of this information.
We recommend that the Government respond fully
to the proposals of the Data Protection Registrar in its response
to this Report; and that in any case consider helping those who
have to apply these provisions by stating within the Bill itself
(rather than indicating through the application of certain provisions
of the Data Protection Act) the rules to be applied to requests
for third party information. There will undeniably need to be
an easy-to-understand guide for authorities on how they should
apply these provisions, and we recommend that the Government collaborate
with the Data Protection Registrar on the production of such a
guide. We believe that applicants should be able to gain access
to the information the require without having to establish which
Act to use, and that authorities and the Commissioner should work
to make this possible (paragraph 99).
The Government will work closely with the Data Protection
Registrar to ensure that authorities and applicants have easy
to understand guidance. The Government has discussed the proposals
of the Data Protection Registrar with her. The Government agrees
that her proposals are a helpful guide to the interpretation of
the EU Data Protection Directive and its interface with the Freedom
of Information legislation. The Government understands that the
Registrar intends, when she has the powers under the Freedom of
Information Act, to refine her proposals and to issue them as
interpretative guidance under the provisions of clause 40 of the
Bill. The Government welcomes this intention. The Bill does not
require an applicant to determine which Act to use to obtain information,
it will be the authority which undertakes this task.
Information provided in confidence
We recommend some clear guidance be provided on
the practical interpretation of the exemption for information
provided in confidence (paragraph 102).
The Government agrees that guidance should be offered
on the practical interpretation of the law of confidence. This
will be offered by the Information Commissioner in the course
of carrying out her duty to promote the following of good practice
and observance of the requirements of the Act (clause 40). The
Data Protection Registrar (who will become the Information Commissioner
under the terms of the Bill) already offers general guidance to
data users in respect of data protection legislation and the law
of confidence, and in the Government's view is well qualified
to offer guidance of this kind. Of course, guidance cannot be
definitive, and authorities will need to take their own legal
advice as to the extent and nature of any duty of confidence they
owe to others.
We recommend that the commercial interests exemption
be replaced by a narrower test (while preserving the existing
class exemption for trade secrets) or else, as we have already
recommended, is limited to what would cause "substantial"
prejudice (paragraph 105).
We recommend that in this clause there should
be an explicit public interest test to be balanced against the
prejudice arising from disclosure (paragraph 106).
The White Paper said 'relations between public authorities
and the private sector need to rest on two-way openness and trust'.
The scope of the draft Bill is already wide and potentially includes
a sizeable proportion of private sector organisations in relation
to functions they carry out of a public nature as well as information
held by public authorities about private organisations. The exemptions
must be capable of working effectively for all public authorities
and the Bill must not jeopardise the position of private organisations
operating in a commercial environment. The Government believes
that the Bill as drafted provides the correct degree of protection
both in the sort of information protected and the level of harm
required for an exemption to apply. In every case where the exemption
applies the authority is required to consider any discretion it
may have to disclose information where it is in the public interest
to do so (clause 14).
Clause 14 means that the balancing of the public
interest in respect of discretionary disclosures already forms
a distinctive step in authorities' consideration of applications
for the disclosure of information, and the step has been given
greater clarity and weight by the amendments to strengthen clause
Third parties: reverse FOI
We recommend that third parties should have a
right to notification of a possible disclosure of information,
with a right of appeal against disclosure to the Information Commissioner;
also that the Tribunal should be able to entertain complaints
from third parties about the disclosure of information. However,
there must be clear guidance on how much effort it is reasonable
to make in order to obtain the views of third parties (paragraph
The Government does not agree with this recommendation.
Where third parties have existing legal rights, those rights will
not be affected by the freedom of information legislation. For
example, third parties have a right to protect information given
in confidence through injunctions to prevent disclosure, or action
for damages for breach of confidence. Public authorities will
consult third parties where such rights exist in order to protect
themselves from threats of legal action. But at present such rights
must be enforced by the third party, at their own risk. The Government
does not consider that it would be right to create a new route
for the enforcement of private legal rights, the costs of which
would fall to the public purse. Where no legal rights exist at
present, the Bill does not create new ones. Though it would be
good practice for public authorities to consult third parties
in circumstances where they might be affected by a disclosure,
a statutory duty to do so would be cumbersome and onerousand
would need to be couched in such vague terms as to be practically
unenforceable. In the light of this the Government is satisfied
that dealing with these matters in the Code of Practice is the
sensible way forward.
Prohibitions on disclosure
We regard the possibility that EC provisions may
limit the extent of disclosure of EC documents under the legislation
as unacceptable, but the remedy lies in securing a more open EC
regime (paragraph 111).
The Government notes the Committee's comment and
agrees that this is not an issue for resolution in the Freedom
of Information Bill.
Power to confer additional exemptions
We recommend that clause 36 is removed from the
Bill (paragraph 112).
The Government has noted the recommendation in the
report of the House of Lords Select Committee on Delegated Powers
and Deregulation that the power to create new exemptions should
be limited to those which contain a prejudice test. The Government
accepts the recommendation of the Lords Committee and will amend
the Bill accordingly. However, the Government considers that it
is necessary to retain a mechanism for creating new exemptions
in the Bill, albeit that it would expect to use this power only
in exceptional circumstances.
Effects on disclosure
We recommend that clause 37 be removed from the
Bill (paragraph 116).
The Government agrees with this recommendation.
Applications under the Bill
We recommend that the Bill specify that where
a request is turned down, clear reasons must be given for the
refusal, and the applicant must be told of his or her right to
complain and to appeal (paragraph 119).
The Government agrees with this recommendation.
We recommend that the Bill include a provision
making clear the authority's obligation to disclose part of the
information requested, even if part of it is exempt (paragraph
The Bill already achieves this. As the Committee
notes, the draft Bill gives access to information, not to documents.
Clause 8 provides that information will be communicated to the
applicant unless, or to the extent that, the information requested
consists of exempt information. Therefore all information within
a document, which is not exempt, will fall within the scope of
clause 8(1)(b) and will be subject to disclosure. This may well
mean that a document is given out with exempt information deleted.
We recommend that authorities should be obliged
in the Bill to give requesters "reasonable assistance"
The Government believes that such a provision would
be so vague as to be unenforceable. The Government considers that
its proposal to deal with assistance to applicants through the
Code of Practice is the right way forward.
We recommend that the publication of registers
of information held by an authority be included as an element
in publication schemes (paragraph 122).
The Government agrees that an authority could decide
to include in its publication schemes a register of information
held. However, for many authorities such an exercise would be
extremely complex and time-consuming. For this reason we do not
believe there should be a statutory requirement to include such
a register in the publication scheme.
Fees and charges
We recognise that there are dangers in the system
proposed for charging for requests. We believe, however, that
the ability to charge more realistic costs for requests which
cost more than £500 to deal with may (given the present structure
of the bill) satisfy authorities that they will be able to recover
the costs involved in large and complex requests; and that the
low costs for easier requests will mean in practice that most
authorities will not charge for information. It will be essential
to keep the charging regime under continuous review to ensure
that it is working effectively and fairly (paragraph 125).
The Government agrees that the charging regime should
be kept under review and considers that the Commissioner should
undertake this task and report on her findings.
Response time limits
We recommend that the Secretary of State use the
power given him in the Bill to vary the time allowed for different
kinds of casesthough without making it too complex. In
particular, it should be no worse than it already is under the
Code (i.e., 20 days) for requests for recent information addressed
to those bodies under the jurisdiction of the Parliamentary Commissioner
though it might be somewhat longer for less recent information,
or for other bodies (paragraph 128).
The Government agrees that public authorities should
be set a more challenging target and will amend the Bill to require
responses within 20 working days.
We recommend that provision be made, either through
the Regulations relating to time limits under clause 10, or through
the Code of Practice, making clear that genuinely urgent requests
should be treated expeditiously (paragraph 128).
The Government agrees that wherever possible authorities
should process urgent requests as quickly as possible. But as
public authorities are not entitled under the Act to enquire as
to the reasons for a person wanting the information or their motives,
the Government does not see how a public authority can be in a
position to assess whether a particular request is "genuinely
urgent" or should be given priority over other requests.
We believe that an authority should not be able
to withhold information from the Commissioner on the grounds that
it might provide evidence of the commission of an offence by the
authority. If it is necessary to protect an individual's right
to be presumed innocent, this must apply only to individuals.
We recommend that the Bill be amended accordingly (paragraph 135).
The Government proposes to remove clause 44(7) from
The Information Tribunal
However, adding a Tribunal stage to the enforcement
system does provide a necessary element of procedural fairness
to the system. We would expect systems of informal resolution
to prevent all but the most intractable cases
proceeding as far as the Tribunal, and we would expect no case
to take longer than 9 months to settle. Lord Lester welcomed the
addition of a Tribunal to the Bill, and so do we. The Tribunal
represents a relatively simple and quick form of appeal, based
on precedent (paragraph 137).
The Government notes and welcomes this recommendation.
The Commissioner and other complaints authorities
We recommend that if there is any deficiency in
the Parliamentary and Health Service Commissioners Act which will
prevent the Ombudsman from dealing with complaints even where
these involve some element of a Freedom of Information request,
this should be remedied (paragraph 138).
Any complaints that information has not been supplied
in accordance with the terms of the legislation will fall to the
Information Commissioner to investigate. But the Government recognises
that some complaints of maladministration will involve allegations
of a failure to supply information. The Government will ensure
that the legislation permits the Information Commissioner to disclose
full details of her investigations to assist in any investigation
on grounds of maladministration.
The Commissioner and Parliament
We repeat our earlier recommendation that this
Committee should have the right to interview the prospective appointee
about the post before he or she takes up the appointment and make
recommendations to the House (Paragraph 139).
The current Data Protection Registrar will become
the Information Commissioner initially for an interim period of
two years. During that time a fair and open competition will be
held to appoint a Commissioner for a five year term. The Select
Committee will be able to take evidence from the Commissioner,
We recommend that this committee become the Parliamentary
focus for the work of the Information Commissioner (paragraph
The Government notes this recommendation.
We recommend that the Home Secretary be obliged
in the Bill to publish an annual report on the operation of the
Act (paragraph 141).
The Secretary of State will be required to publish
an annual report during the implementation of the Act. But the
Government does not see a role for it to publish an annual report
after the Act is fully implemented. The Commissioner will have
the function of monitoring the Act and will present an annual
report to Parliament. She can call on the Secretary of State to
comment as necessary. The Select Committee can also call on the
Secretary of State to comment as appropriate, or to respond to
the Commissioner's report to Parliament.
We recommend that the exemptions for investigations,
honours and communications with the Royal Household should cease
to apply after 30 years (paragraph 146).
The class exemption for information relating to investigations
and proceedings carried out by public authorities (clause 25)
will be removed at the 30 year point, but the prejudice test exemption
should continue, Such information merits protection both because
of the need to avoid an access regime becoming of use to criminal
elements, and in order to prevent FOI legislation becoming an
alternative mechanism for pursuing private interests in both criminal
or civil cases, to the detriment of the established legal structures.
The continuation of this exemption beyond 30 years is based on
the recognition that such information may be capable of causing
harm long after it was first collected. For example, an investigation
may not have been concluded for want of further evidence and,
while not proceeded with at the time, may remain open. In these
circumstances the premature disclosure of information collected
about individuals suspected of wrongdoing could harm either individuals
who are in fact innocent or the collection of further information
necessary to bring proceedings against those who may be guilty.
The issue of personal confidentiality arises with
respect to honours and clause 29(1)(b) was drafted in recognition
of the need to protect this. The issue of confidentiality does
not disappear at 30 years, but will remain for the lifetime of
The Government accepts the point that there is no
reason for the exemption relating to communications with the Royal
Household to be allowed to continue for longer than arrangements
set out following the 1993 White Paper on Open Government. The
Government will act to ensure that this is the case.
We recommend that all the exemptions cease to
apply after 100 years, if they have not already ceased to have
effect (paragraph 147).
There are some exemptions which are not disapplied
at any point. Clause 14 means that all information is always capable
of being released, where it is in the public interest to do so.
As the Committee correctly point out, the requirement on authorities
to consult the Lord Chancellor before refusing to exercise their
discretion to disclose should ensure that information is only
withheld in exceptional circumstances.
In practice we expect the sensitivity of information
to decrease over the years, so that exemptions will be less likely
to apply with the passage of time. We expect, therefore, that
there will be no more than a handful of records held back over
time. However, there will be exceptional cases where information
will merit protection even after the passage of 100 years, and
therefore the Bill must allow for such information to be withheld.
An example of the necessity for this sort of protection is the
need to protect descendants of informants.
We recommend that the strength of the current
system in making clear decisions on whether records are exempt
at the point they are transferred to the Public Record Office
should be continued into the new regime; and that this system
is incorporated within the Code of Practice made under clause
39 (paragraph 148).
The Government accepts the Committee's recommendation.
The Code of Practice made under clause 39 will be drafted accordingly.
We would assume that the Public Record Office
should continue to be closely involved in the process of reviewing
records and deciding on their suitability for disclosure at the
30 year point, to ensure that this is done on time and efficiently
The Government accepts the Committee's recommendation.
The role of the Public Record Office in the review and transfer
process insofar as it relates to the provision of guidance on
procedure will be reflected in the Code of Practice to be made
under clause 39. However, it is of course for the authority concerned
to make the decision as to whether information is accessible under
the Act or not: the Public Record Office can only make such decisions
in relation to the records they themselves hold (although clauses
57 & 58 impose duties to consult with respect to the discretionary
disclosure of public records).
We recommend that the Code of Practice should
in particular address the issues surrounding electronic records
The Government accepts the Committee's recommendation.
The Code of Practice to be made under clause 39 will address the
management of electronic records, identifying best practice in
this field and citing the standards which are now emerging for
the handling of electronic information.
We recommend that the Advisory Council should
continue to play a role in overseeing the release or continuing
disclosure of material at the 30 year point, and this should be
stated in the Bill (paragraph 151).
We accept that the Advisory Council should continue
to have a role to play in the release/ disclosure process of documents
transferring to the Public Record Office. This will be achieved
through an amendment to the Public Records Act 1958 and reflected
in the Code of Practice to be issued under clause 39. However,
where information is held beyond 30 years by authorities other
than the Public Record Office, it is for those bodies to apply
the provisions of the Actthis is not a role for the Advisory