Select Committee on Draft Freedom of Information Bill First Report


Changes from the White Paper: discretionary disclosure replaces right to know

17.Much has been made of the inadequacies in the draft Bill as compared with the White Paper. This report endorses many of those criticisms. But although witnesses were quick to point out the many flaws in the draft Bill, most agreed that it was better to have a flawed Freedom of Information Act than no Act at all.[38] It is worthwhile therefore to start with what is good in the draft Bill. As James Cornford of the Campaign for Freedom of Information pointed out:

      "[the draft Bill] covers a very large number of public bodies, much wider than most. We like the fact there is going to be a statutory right of access even though it does not apply to very much, at central government level anyway. We think the charging provisions are fair and ingenious and attempt to bring the charging regimes into line with the cost of parliamentary questions, so that there is not a disadvantage in asking a parliamentary question as against coming through the Act. That is a quite ingenious and, on the whole, generous provision."[39]

Moreover, the draft Bill extends beyond the central government departments covered by the 1994 Code. It goes beyond the White Paper in providing some coverage of the police[40] and in establishing some rights of appeal to a Tribunal (actually extending the jurisdiction and composition of the Data Protection Tribunal). This is all to be welcomed. But the greatest change from the White Paper to the draft Bill is one which is not immediately obvious: the disclosure of government information is significantly moved from a wide right of access to information, capable of being legally enforced against a public authority by an order of the Information Commissioner, to a discretion in a public authority, assisted in some cases by recommendations from the Information Commissioner. This is the result of a serious erosion of the right of access under clause 8 by a series of exemptions (in Part II) and an expansion of the discretionary power to disclose under clause 14 where the right of access does not apply. Over an extensive area the right to information has been replaced by the authority's discretion. It is true that the Information Commissioner will still retain power[41] to overrule a Minister or public authority on the question whether a specific exemption applies. But the draft Bill's whole emphasis is on the power of public authorities to make or refuse discretionary disclosures under clause 14, which the Information Commissioner has no power to overrule. Moreover, the Bill does not make it clear, as it could in clause 15, that a public authority should have a duty to disclose non-exempt information from an otherwise exempt document.

Review of discretionary disclosure

18.When a Minister or public authority refuses a discretionary disclosure under clause 14, all that the Information Commissioner could do would be to to issue an information notice asking the public authority for information about its refusal to make the disclosure. Paragraph 139 of the Explanatory Memorandum explains that in such a notice the Commissioner

The Tribunal can rule that the Information Commissioner exercised discretion wrongly, but can only rule against a decision notice upholding a public authority's refusal of access if it is wrong in law.[42]

19.Although there is the possibility of two reviews, first by the Commissioner and then by the Tribunal, the ultimate discretion to disclose or not in such cases would remain with the public authority. As Lord Lester told the House of Commons Public Administration Committee:

       "... I can only challenge their discretion if they have acted in a way which lawyers call "Wednesbury unreasonableness", that is to say in a way so irrational that the courts will intervene. So the whole of this area of discretionary disclosure is effectively immune from proper judicial review because of the absence of any standards. All it is saying is "have regard to these interests", not "you must apply them"."[43]

Mr Lee Hughes, Head of the Home Office Freedom of Information Unit, told the Commons select committee that "It was felt that the right person to make the final decision on that, having taken into account anything that the Commissioner, for example, might propose, would be the public authority itself."[44] Lord Williams argued in his evidence that the very possibility of review might lead to greater openness, as

      "it is easier in the end to hand over the information than to go through all this minuet of trying to find reasons why you have not exercised your discretion properly. It is easier...once you...find it is not too bad and you actually can bear it, to run your Department in a way where you are predisposed to hand over information rather than go to the fag and the effort of trying to defend it through all these stages."[45]

However, if this is the desired result of the provision, the question inevitably occurs: why not enact a power to overrule directly in the draft Bill?

20. Lord Williams emphasised that the draft Bill would indeed impose a duty on a Minister or public authority to consider the public interest, but this would be in clause 14, in deciding whether or not to make a discretionary disclosure of exempt information. Clause 14 therefore did "quite a bit in terms of enpowerment and entitlement".[46] However, the shift from the position taken in the White Paper became apparent to us only when a close reading of the draft Bill was supplemented by the responses of Lord Williams and his officials in oral evidence. In addition to the duty imposed by clause 14, Lord Williams emphasised that the Information Commissioner could issue a decision notice under clause 43 directing the Minister to consider the public interest in making a decision about whether or not to disclose. But, he said, the final decision in such cases must rest with the relevant Minister alone, because he alone was politically accountable:

      "I believe that it is a reasonable argument to say that at the end of the day it is Ministers who ought to be accountable to the public for the discharge of their duties in these difficult areas. The alternative view, which I recognise and understand, is that an outside person ought to be able to do that. I do not think Ministers in these tricky areas are willing to accept that. In fact, I know they are not. I do not think that makes it weak."[47]

We have noted that the power of Ireland's Information Commissioner to make such binding rulings overriding ministerial decisions is not circumscribed in this way. The Irish Commissioner has power to review and overrule ministerial decisions that information is exempt.[48] This reflects the conviction that government information is to be regarded as public property.[49] In our opinion clause 14 should require public authorities to balance the public interest against the harm caused by disclosure rather than merely having regard to it.

21.It is fundamental to Freedom of Information law and practice that government information is seen as belonging to the people, who have a right to see and use the information unless there are good reasons for exempting it. If the ultimate decision whether information is exempt from such a right of access is made by a government Minister or public authority rather than by an independent arbiter, the law may be regarded as a statement of good intentions, but it is not a Freedom of Information Act as that term is internationally understood. As the Bill is at present drafted, a Minister may decide that the public interest in disclosure does not override the harm which may result from the disclosure. In Freedom of Information jargon, the power of an Information Commissioner to overrule that decision is known as "public interest override". To the extent that the draft Bill represents a move from an enforceable public right of access to government information on the one hand to discretionary disclosure on the other, it abandons the Freedom of Information principles expressed in the White Paper. The most important single way to restore those principles is to give the Information Commissioner a public interest override power in clause 44 to overrule a ministerial decision under clause 14, and to order disclosure. At the very least there should be a power for the Commissioner to publish an opinion that a discretionary refusal to disclose was wrong on the merits, rather than simply to issue a decision notice about the procedure followed. As the Home Secretary said in a lecture on 12th May 1999: "Good government depends on rigorous external scrutiny and challenge".[50]

Exemption based on class of information replaces exemption based on harm from disclosure

22.One of the methods by which the draft Bill moves away from an emphasis on a right of access, enforced by an Information Commissioner, is to expand the categories of exempt information. It does this by creating new categories which are exempt from rights of access simply because of the "class" into which they fall rather than because of any actual or likely harm which their disclosure may cause.[51] This compares badly with the existing Code and the White Paper. Lord Lester told the Commons Public Administration Committee that

      "it is wrong in principle to create sweepingly broad immunities from the right of public access....The effect of those blanket exemptions is to immunise from external scrutiny by the Information Commissioner and by the courts, discretionary decisions to withhold huge swathes of official information."[52]

23.Exemption from disclosure has thus moved from protection based on the contents of documents to protection by classes of document. This should be contrasted with the current doctrine of public interest immunity (PII). PII certificates are issued by Ministers when they seek to avoid disclosure of information for the purpose of legal proceedings. The purpose of a certificate is to claim that the harm to the public interest by disclosure would be greater than the public interest in making the information available to the court. In the past, some PII certificates were treated as exempting from disclosure all documents in a particular class, while other certificates were to exempt documents whose contents would be likely to damage the public interest. In "class" PII certificates, judicial inquiry was limited to ascertaining whether the documents were included in the class claimed for them; in "contents" PII certificates, the judicial inquiry was to determine whether the damage from disclosure would justify their exemption. Following the Scott Report in 1996[53], the Attorney General and Lord Chancellor announced that PII certificates would in future be based on contents rather than the class of documents and the contents would be seen by the judge.[54] There has been a similar development in non-ministerial PII claims in which the contents of documents are examined by a judge to determine if harm to a public interest from disclosure would justify immunity.[55] There is of course a distinction between limited disclosure for judicial purposes and general public disclosure. But it is unfortunate that while PII exemptions are now subject to greater scrutiny of the reasons claimed for exemption, freedom of information exemptions are, in many cases, to be subject at most to scrutiny as to the class into which they fall.[56]

24.The exemptions relating to investigations and proceedings conducted by public authorities (clause 25) represent one of the most serious divergences from the White Paper. Lord Williams suggested that these might be reconsidered.[57] The exemption in clause 25(1) would completely exclude from disclosure the reports of police investigations. We believe that investigations under clause 25(1) should be exempt only if their disclosure "would substantially or would be likely substantially to prejudice" a protected public interest. Neither the draft Bill nor the Explanatory Notes make clear what public interest the class exemption is intended to protect, but we feel that the primary public interest should be the right of an accused to a fair trial. To that end we would accept a limited class exemption for current investigations, but recommend that all others should be subjected to the test whether they are "likely substantially to prejudice" the integrity of the judicial process.

25.The exemption in clause 25(2) would exclude completely from disclosure the reports of investigations into accidents, fitness for management, "improper conduct", protecting charities and their property, "health, safety and welfare at work", and any civil proceedings brought by a public authority. We believe the release of such information is of great importance for the injured and the bereaved in helping them to come to terms with their loss. Lord Williams told the Committee that he "personally felt uneasy about the consequences".[58] The Home Secretary told the Commons Public Administration Committee that "strong arguments had been made against a class exemption and he would give careful thought to it."[59] We believe that the exemptions in clause 25 (2) are far too wide, and should be replaced by exemption for such classes of information only if their disclosure "would substantially or would be likely substantially to prejudice" a protected public interest. As with the clause 25(1) class exemption, neither the draft Bill nor the Explanatory Notes make clear what public interest the class exemption is intended to protect. If the primary public interest is the right of individuals to fair investigative proceedings or personal privacy, that should be made clear.

26.If the purpose of the class exemptions in clause 25(1) and (2) is to protect confidential sources for the purposes of police and other investigations, that purpose is provided for separately in clause 25(3). Potential informants are also protected by the harm test in clause 26 and the confidentiality exemption in clause 32. While recognising the public interest in protecting the confidentiality of sources for such investigations, we think that this is also too wide. Many of the PII certificates discussed in paragraph 23 are for the purpose of protecting information about confidential informants. Those are now subject to a test as to whether the contents of the evidence would justify withholding it from disclosure in court proceedings, rather than exempting it from disclosure on the basis of the class of evidence. We recommend that a similar test should apply in exempting information relating to the obtaining of information from confidential sources, and that such information should be exempt only if disclosure "would substantially or would be likely substantially to prejudice" the obtaining of information from confidential sources.

Exemption based on "prejudice" replaces exemption based on "harm"

27.We have identified in paragraph 17 a shift from the White Paper to the draft Bill: from an emphasis on a right of access, enforced by an Information Commissioner with the power to overrule a public authority's decision, to a discretionary power invested in a public authority. Another aspect of this shift is that the draft Bill changes the definition of the kind of harm which will exempt information from rights of access.

28.The shift from "harm" and "substantial harm" to "prejudice" as the test for exempting information from compulsory disclosure provoked much discussion when comparing the White Paper with the draft Bill. In evidence to the Committee Lord Williams argued that the test of "prejudice" would be more difficult for government departments to satisfy than the White Paper test of "harm" because "... if something harms my interest we regard that as something less than something which is prejudicial to my interest".[60] Lord Williams also argued that the test in the draft Bill would be more difficult for a withholding authority than the one in the White Paper "because the prejudice test depends on a probability being demonstrated, not on something which is possible, which is what was attached to the harm tests."[61] Lord Lester, however, told the Commons committee that "the word "prejudice" can be extended to almost anything. Any publication of information can lead to some kind of prejudice....The so elastic that it could cover any harm at all. It has to be qualified by some adjective."[62]

29.There is, however, also a view that the test of "prejudice" would effectively be the same as that of "harm". A memorandum of evidence submitted by Clifford Chance noted that, although the Home Secretary in his statement to the House of Commons on 24th May had said that "prejudice" had been subject to much judicial interpretation by the European Court of Human Rights, their research had not found a case in which the term was actually interpreted. Clifford Chance also commented that although "English legal dictionaries do not cast useful light on judicial interpretation of the word,..we note that the Dictionary of Modern Legal Usage (an Anglo-American publication) states that "prejudice is a legalism for harm" and concludes "that in fact the terms "prejudice" and "harm" have similar meanings." This interpretation was supported by Mr Lee Hughes, Head of the Home Office Freedom of Information Unit, who described the two words as "virtually synonymous".[63]

30.Whatever the difference, it seems likely that at least one source of the change in terminology is the Data Protection Act 1998, which uses the term "prejudice". It may be that the change from the White Paper to the draft Bill was simply part of a general effort to make the draft Bill conform with the substance and form of the 1998 Act. If "prejudice" and "harm" are considered to be synonymous, the question then becomes whether the test for exemption should be simple "prejudice" or simple "harm", or whether it should be made more restrictive by adding a qualifying adjective such as "substantial" (which was favoured by the Guardian in its evidence to us[64]). On being asked whether he would settle for including the word "substantial" before the word "prejudice", Lord Williams said that he "would certainly, on behalf of Jack Straw, undertake to give it careful consideration."[65]

31.In formulating any harm test it is necessary to distinguish between the likelihood that harm will result from a course of action and the nature of the harm in question. If the test for any exemption is to be that of "substantial harm (or prejudice)", it must then be decided whether it is to be possible or probable substantial harm (or prejudice). Lord Williams indicated that it was to be a probability test, and that most clauses in the draft Bill say "would or would be likely". We welcome the use of that formula.

32.We are satisfied, on balance, that "prejudice" can be considered to have the same meaning as "harm". However, we believe that "prejudice" alone is not sufficient to justify exempting information from public access. We would amend the draft Bill wherever "prejudice" is the test for exemption, to require that disclosure "would substantially or would be likely substantially to prejudice" a protected public interest. Clauses 21 (defence), 22 (international relations), 23 (relations within the United Kingdom), 24 (the economy), 26 (law enforcement), and 28(3) (decision-making) should be amended accordingly.

Other exemptions

  (a) power to create new and retrospective exemptions

33.Clause 36 of the draft Bill provides for a power to create new and retrospective exemptions in response to applications for access to information. This provision appears out of the blue. It was not even mooted in the White Paper. It was described to us as "a ministerial veto over any disclosure which is not exempt".[66] There a similar power in section 38 of the Data Protection Act 1998, which may be the source of this provision. According to Dr Herbert Burkert, there is no equivalent in any other national Freedom of Information legislation: the power was "truly innovative in protecting administrative interests."[67] The power is to be exercised by affirmative resolution.[68] We do not understand why, in a Bill with wide exemptions based on the class of information or of the harm which its disclosure might cause, there needs to be a reserve power for a Minister to create a new exemption to deal with an unwelcome request for information, or why the new exemption should have retrospective effect to justify a refusal. In our opinion, clause 36 should be deleted completely. If, despite this recommendation, the Government continues to believe that such a power is necessary, then it should be exercised in a specific situation only if the Information Commissioner agrees. At the very least the power should not be made retrospective.

  (b) policy advice

34.We consider that the possibility of discretionary disclosure of policy advice after decisions have been taken should be considered under clause 14. Nevertheless we accept the arguments justifying a class exemption for policy advice. However, policy advice should be distinct from separable factual background to that advice. We heard evidence that officials were instructed in 1977 under the Croham Directive to draft policy advice separately from the factual background.[69] We believe that such factual background should be exempt only if its disclosure "would substantially or would be likely substantially to prejudice" the interests set forth in clause 28(3).[70]

35.Clause 28 creates two kinds of exemptions. The first is for information relating to "policy development", including (but not limited to) advice, which does not distinguish between advice and factual background. The second exemption is for other information which does not qualify for the "policy development" exemption. Such non-exempt information can be made exempt by a "qualified person" (usually a minister) if he determines that disclosure would "be likely to prejudice ...the effective conduct of public affairs", "inhibit free and frank" advice or views, or "prejudice...collective responsibility." The second exemption goes too far. Non-policy development information should be exempt only if disclosure "would substantially or would be likely substantially to prejudice" the interests set forth above. The test should be an objective one, reviewable by the Information Commissioner and not by the "qualified person".

  (c) "jigsaw puzzle" exemption (clause 37)

36.Some sections of the draft Bill resemble provisions in the Official Secrets Act 1989. It must be emphasised that the purpose of an exemption under the draft Bill is to exclude the information from general dissemination as a matter of right. The purpose of the provisions in the Official Secrets Act is to protect various kinds of information from unauthorised disclosure by providing for criminal penalties. It would seem at least possible that there might be reasons of public policy which would justify not disclosing particular information to the general public as a matter of right, but which would not necessarily require the imposition of criminal penalties for the unauthorised disclosure of that information. To make exemptions in the Freedom of Information Bill conform with those in the Official Secrets Act would seem to misunderstand the relationship between the two.

37.One such exemption is to be found in clause 37 (effect of disclosure, the "jigsaw puzzle" exemption) which provides that information will be exempt even if its disclosure would not cause a designated kind of prejudice, if, when combined with other information which is not public and may not be likely to become public, it would cause one of the designated kinds of prejudice. One difficulty here is that the exemption applies even if the "hidden" part of the puzzle is not held by the public authority, is not accessible to the public, and is not likely to become accessible to the public. The exemption is made even broader by subsection (2) which lists eight different kinds of prejudice (including commercial prejudice) that will bar the disclosure of the information. This list is far too wide. We would confine the exemption to information which would substantially prejudice national security or defence if it were to be combined with information reasonably likely to become accessible to the public.

  (d) information intended for future publication

38.The exemption in clause 17 for information intended for future publication "at some future date (whether determined or not)" is too broad. It should at least be limited to information to be published on a date determined, or, as in the Irish Act, to be published within three months of the date of the application for access to the information. The clause in the bill provides that a refusal on this ground should be "reasonable in all the circumstances" and that a refusal to disclose can be appealed to the Information Commissioner, who can overrule the public authority. This provides some protection against abuse.

  (e) security matters

39.Clause 18 would exempt from disclosure information held by a public authority when a Minister certifies that it was supplied by or relates to the work of any of the various security or law enforcement bodies listed in the clause. We consider this to be too broad. It should be replaced by a provision that such information is exempt from access only if its disclosure "would substantially or would be likely substantially to prejudice" national security or defence.

38   QQ 336-337, 396-397, 400. Back

39   Q 207. Back

40   This was almost certainly in response to the specific recommendation of the Macpherson inquiry into the death of Stephen Lawrence that a Freedom of Infomation Act should apply to all areas of policing, both operational and administrative, subject only to a "substantial harm" test for withholding disclosure, although clause 26 of the Draft Bill uses "prejudice" instead of "substantial harm": Cm 4262-I, p 328. Back

41   Clauses 43 and 45. Back

42   Clause 50. Back

43   HC Q 250. Back

44   Q 59. Back

45   Q 57. Back

46   Q 561. Back

47   Q 510. Back

48   This is subject to a conclusive power for a minister to refuse information, but only if it might reasonably be expected to prejudice or impair law enforcement and public safety (s.23) or security, defence and international relations (s.24). After six months the certificate is reviewed by the Prime Minister and other ministers (not the certifying minister), the certificate expires after two years, and there is a right of appeal on a point of law to the High Court which sees all the papers (s.42). Back

49   Q 511. Back

50   Quoted by Lord Lester of Herne Hill in his evidence to the Commons Public Administration select committee, Q 205. Back

51   There are 12 such class exemptions in clauses 16, 17, 18, 19, 22(2), 25, 27, 28(1), 29, 31, 33, and 34(1). There are 11 contents exemptions in clauses 21, 22, 23, 24, 25, 26, 28(3), 30, 32, 34(2), and 36 Two of those, in clauses 28(3) and 36, may be class exemptions if the 'qualified person' or Secretary of State decides to exempt a class.  Back

52   HC Q 205. Back

53   Report of the Inquiry into the Export of Defence Equipment and Dual Use Goods to Iraq and Related Prosecutions, HC (1995-96) 115. Back

54   H.C. Debs Vol. 287 col 949, HL Debs Vol. 576 col 1507, 18 Dec 1996, HC Debs Vol. 297 col 616, 11 July 1997. Back

55   R. v. Keane, 99 Cr.App.R. 1; R. v. Davis, Johnson and Row, 97 Cr.App. R. 110. Back

56   e.g. Clauses 16, 17, 18, 19, 25, 27, 28, 29, 32, 33, 34, 35. Back

57   Q 25. Back

58   Q 26. Back

59   Q 25. Back

60   Q 8. Back

61   Q 3. Back

62   HC Q 215. Back

63   Q 4. Back

64   Q 307. Back

65   Q 12. Back

66   Q 229. Back

67   Dr Burkert's memorandum, p 40 below. Back

68   Twenty-First Report of the Delegated Powers and Deregulation Committee, paragraphs 16 and 17, HL (1998-99) Paper 79. Back

69   QQ 350, 357, 386. Back

70   i.e. the "maintenance of the convention of the collective responsibility of Ministers of the Crown" or "the effective conduct of public affairs". Back

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