Select Committee on Public Administration Fifth Special Report


APPENDIX

GOVERNMENT RESPONSE TO THE THIRD REPORT FROM THE
SELECT COMMITTEE ON PUBLIC ADMINISTRATION (SESSION 1998-99)
ON THE FREEDOM OF INFORMATION DRAFT BILL

CONCLUSIONS AND RECOMMENDATIONS

General

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 making;
  • find out what information government and other public bodies hold about themselves;
  • hold government and other bodies to account (paragraph 12).

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 about oneself.

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.

Key principles

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;

    The Government agrees.

  • 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 (paragraph 44).

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.

Publication schemes

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 47).

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 effect.

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 (paragraph 52).

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 52).

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.

Purpose clause

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.

EXEMPTIONS

Class exemptions

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 encouraged—perhaps through the Code under clause 38—to 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 given—though 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 longer term.


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.

National security

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.

Law enforcement

We recommend that, in place of clause 25, there should be a specific and tightly drawn class exemption for informants (paragraph 81).

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) (paragraph 89).

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.

Personal 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.

Commercial interests

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 14.

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 110).

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 onerous—and 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 120).

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.

Assisting applicants

We recommend that authorities should be obliged in the Bill to give requesters "reasonable assistance" (paragraph 121).

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 cases—though 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.

Self-incrimination

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 Bill.

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, once appointed.

We recommend that this committee become the Parliamentary focus for the work of the Information Commissioner (paragraph 140).

The Government notes this recommendation.

Reviews

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.

Historical records

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 those concerned.

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 (paragraph 149).

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 (paragraph 149).

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 Act—this is not a role for the Advisory Council.


 
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Prepared 27 October 1999