Select Committee on Trade and Industry Minutes of Evidence

Annex D

Text of a Letter from Mr M J Evans, Deputy Director General at the DMA, to Mr Robert Cavzer, at the Freedom of Information Unit, in the Cabinet Office, dated 26 February 1998 concerning the December 1997 Consultative White Paper on the proposed Freedom of Information Act

  1.  We would like to respond to the publication in December 1997 of the Government White Paper on "Your Right to Know—Freedom of Information", and take up the invitation to submit some comments on its contents for consideration in the consultative process on this matter.

  2.  We are sure that British Industry will overwhelmingly support this important initiative "to legislate for freedom of information, bringing about more open Government". (The Prime Minister's preface to the White Paper). We would agree with the view (1.1) that in recent years public confidence in Government has been adversely affected by the climate of over-secretiveness that many have perceived to pervade "officialdom", and that a new culture of greater openness is required to counteract this.

  3.  We are reasured that the Act will ". . . contain a list, showing which public authorities and other organisations are covered, so that there will be no ambiguity about which bodies are included and which are not . . . " (2.4), as clarity will be essential right from the start for all concerned.

  4.  We are also convinced as to the positive benefits resulting from ". . . the pro-active release of information . . . " (2.18) and the establishment of ". . . time limits for response. . . [being] . . . set out in the Act to ensure that applicants do not have to wait an excessive or unreasonable time for responses." (2.23), the latter of which we are sure Industry would like to encourage as strongly as possible being used in other areas of Government (such as the processing of Export Licence Applications, the speed of which we would regard as being of far greater importance than requests for information).

  5.  However, we are convinced that there is going to be major unease caused for Industry if the White Paper, and the resultant legislation, fail (in the words of The Chancellor of the Duchy of Lancaster's preface) to strike "| a proper balance between extending people's access to official information and preserving confidentiality where disclosure would be against the public interest."

  6.  Amongst the various areas where the proposed new legislation will affect British Industry is the sphere of export licensing and controls, in which companies submit information, much of which is confidential, to the Department of Trade and Industry, for circulation to the Ministry of Defence and the Foreign and Commonwealth Office, in support of Export Licence Applications.

  7.  We believe that the interests and activities of the Defence Industry in this matter will be most closely linked to three of the "specified interests governing disclosure" (3.11), these being: "National Security, defence and international relations" (3.11(1)); "Commercial Confidentiality" (3.11(4)); and "Information Supplied in Confidence" (3.11(6)).

  8.  We are reassured that the White Paper specifically refers to commercial confidentiality as being one of those factors which will govern decisions on disclosure (3.11(4) and 3.11 (6)) and that reference is made (3.19) to making decisions ". . . not to disclose particular information . . . [which might] . . . result in substantial harm to . . . the commercial interests of a third party". However, we also note with some concern the statement that "Commercial confidentiality must not be used as a cloak to deny the public's right to know" (3.11(4)). We are concerned that any provisions regarding this will be susceptible to being used to pressurise HMG to release information of a commercially confidential nature.

  9.  Whilst we are pleased that the White Paper has taken note of the threat of excessive requests for information being made (2.25), we are concerned that the new FOI legislation could result in a large number of requests for information from members of the public, some of whom may well be associated with "anti-arms trade" pressure groups or working on behalf of British companies' overseas competitors, seeking information about UK defence exports, the revelation of which might well do some damage to the commercial interests of the companies concerned, as well as to the UK's international relations with the relevant countries.

  10.  Despite the reference (2.26) to measures to try to identify and deal with excessive applications, we are sure that some of these (especially 4—large-scale "fishing expeditions"—and particulary 6—large multiple applications for similar information from different sources which are clearly designed to obstruct or interfere with the public authority's business) could present major problems. We are convinced that some pressure groups could well perceive the latter of the 2 options above as a useful strategy to try to obstruct and delay the UK's export licensing system, to suit their own purposes.

  11.  With regard to the UK's international relations, we also feel that it must be emphasised that companies do not generally endeavour to keep to themselves information on what contracts they have won for their own motives (indeed, in most cases they would want to publicise them), but almost invariably because the customer concerned has insisted upon confidentiality. In addition to the potential diplomatic damage on the UK's international relations, there could be serious commercial implications, because if customers such as those above, who usually have perfectly legitimate reasons for requiring confidentiality, perceive that a Freedom of Information Act in the UK could make it difficult, or even impossible, to maintain such confidentiality in the future, then British defence companies will find it significantly more difficult to do business in these nations, who will simply go to other, more potentially discreet, supplier nations.

  12.  We would agree with the recommendation (2.33) that it is desirable for there to be ". . . a two-tier charging approach designed to impose higher charges on commercial and other corporate users of the Act" in comparison to individual applicants, although we are sure that the viability of this is questionable. It would be easy for companies to circumvent this (eg by getting staff to submit applications in their own names from home) if they wished to do so.

  13.  We are concerned that the section on Review and Appeals (5.1-5.19) concentrates almost exclusively on the rights of appeal when an application for the release of information has been denied or is being delayed, and that there is little mention of appeals the other way around, ie when disclosure has been approved. It is only at the very end (5.19) that a brief passing mention is given to ". . . a mechanism . . . to allow third parties to appeal against decisions to release information which they believe would cause "substantial harm" to their interests . . ." We are convinced that such a mechanism will be essential.

  14.  We would strongly argue that whenever information is requested that has either been submitted by a third party, or is about a third party or refers to a third party, that that third party should be informed at the start of the assessment as to whether to disclose information or not, so that they can have some imput into the decision making process. They must certainly have the right of appeal if it is decided to release information if they have stated that they would oppose this.

  15.  We are also concerned at the apparent lack of clear definition as to what constitutes "substantial harm" (3.7) or "public interest" (3.3(3) and 3.4), as these vital criteria will apparently be used to determine whether release of information should take place or not. These ill-defined concepts would be a mechanism prone to arbitrary decision-making by the officials involved. We would whole-heartedly agree that clear definitions of these will be essential, as stated in the White Paper (3.4, 3.16 and 3.18).

  16.  However, we do not believe that these are the right or viable concepts with regard to commercially confidential information that has been provided by companies to HMG in confidence. We would strongly argue that in these cases, when the information has been provided to Government and may have some commercial confidentiality implications, that the determination should not be "substantial harm", but merely "harm", and that "public interest" must be taken in the broadest possible terms, as representing the broad economic interests of the UK, through the commercial interests of the British companies concerned.

  17.  We would reiterate that it will be essential in drawing up and implementing the Act, for there to be clearly established a proper balance between allowing greater access in information and the essential necessity to safeguard confidentiality.

  18.  I hope that the above comments may assist you in your endeavours and consultations on this important matter.

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