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Lord Lester of Herne Hill: I am grateful to the noble and learned Lord for giving way. Like the noble and learned Lord, Lord Archer of Sandwell, I do not have a wide-awake Renaissance mind about these matters. I should like the noble and learned Lord to clarify one point. Am I right in thinking that the new clause will not have an impact on Clause 33, dealing with information from private offices, government and so on, that there will be not an absolute exemption but that something will be brought back later in place of Clause 13(5) that will involve a balancing test? Is that the scheme being contemplated?

Lord Falconer of Thoroton: Yes. Clause 33 is not an absolute exemption clause. It means that, in regard to any information that is exempt because it relates to policy, the public authority has then to consider in relation to all of the information covered by Clause 33 whether the public interest favours disclosure. In considering that, it must have regard to the fact that there is a public interest in disclosing factual matter which forms the background of a policy decision. That is the structure.

The only other area raised by the noble Lord, Lord Mackay of Ardbrecknish, concerned information that is reasonably accessible by other means. That matter can be tested by the information commissioner.

5.15 p.m.

Lord Archer of Sandwell: Before my noble and learned friend proceeds, I should be grateful if he could resolve something that is puzzling me. Why is it so important to ensure that information which is already available by other means does not emerge, whatever other tests may be applied to it?

Lord Falconer of Thoroton: If the matter is reasonably accessible by other means--that issue is justiciable before the information commissioner without any possibility of ministerial override--it would not seem sensible to make it also susceptible to the public interest test. The information commissioner

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will have decided that the information can be obtained somewhere else. That is the factual issue which should determine whether one gets it through the freedom of information regime. That seemed to be the only area that the noble Lord, Lord Mackay of Ardbrecknish, pursued with any degree of vigour.

I have already explained why we say that there should be these absolute exemptions. They have been carefully thought out and they seem to us to be sensible.

Perhaps I may turn to the raft of amendments which address the--I think the term was used loosely--burden of proof point in relation to the exercise of the public interest test in what will become Clause 2. The amendments of the noble Lord, Lord Goodhart, would reverse the balance of the public interest test in respect of the exemption from the duty to confirm or deny. Instead of requiring that the public interest in disclosure must outweigh the public interest in maintaining the exemption, the amendments would require the public interest in maintaining the exemption to outweigh the public interest in disclosure.

How does it work in practice? I do not think that it is a burden of proof issue. This is not about fact and whether a case is made out. It is for the public authority to consider what weighs in the balance in favour of disclosure and what weighs in the balance in favour of maintaining the exemption. Whichever is the higher prevails in relation to whether there is disclosure. The courts have repeatedly said that that is not a burden of proof case. The public authority cannot say, "It's not proved where the balance lies". The public authority has to address the issue and come to a conclusion in relation to it.

The noble Lord's amendment would make a difference in a case where the balances were equal. In that case the position would be that the information would not be disclosed because of the way the provision is drafted. We believe that that is very unlikely to happen. The public interest is not susceptible to being weighed in such a way that it would lead to that. There will be an answer one way or another. The point I have identified is the one made by the noble Lord, Lord Lucas, in relation to his amendments. I recognise that there is strong feeling about this issue. I suspect that that feeling is not about what I think would be a very unusual case where the balance was very fine. I suspect that it is more about what message would be sent to authorities and to the public about creating a presumption of openness. That informed both the noble Lord, Lord Lucas, and the noble Lord, Lord Goodhart.

I hope that the remarks I made at the outset of the Committee stage have indicated where the Government stand in relation to these issues. However, in the light of the strong feeling that has been expressed, and without giving any assurances, I shall consider the arguments put forward and we shall reflect on what their effect may be.

Lord Lester of Herne Hill: I shall try not to make a habit of intervening unless I think it is really necessary

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to do so. I am grateful to the noble and learned Lord for what he has just said. In reconsidering the matter, will he look at the case law? In cases such as Spy Catcher and some of the other cases it would not be right to have an even-balancing in the scales in the way the noble and learned Lord has described. There should be a right of free expression subject to necessary exemptions. That has been clear going right back to the Thalidomide case in the European Court of Human Rights. Will he consider those cases? We are concerned to ensure that it is a question of exceptions to a positive right to free speech and access to information. I should be grateful if the noble and learned Lord would consider that point when he considers the debate.

Lord Falconer of Thoroton: We will look at the relevant cases, but I am trying to explain the effect of the existing legislation, which is plainly a different matter from, for example, the exercise of a judicial discretion in the Spy Catcher case, which concerns a different kind of legal framework.

The noble Lord, Lord Lucas, fairly said that he preferred the amendments of the noble Lord, Lord Goodhart, to his own amendments in this case. With respect to him, I shall not spend too much time on his amendments save to say that his amendments envisage there being a balance in favour of non-disclosure in certain circumstances. Yet because it is not a substantial balance in favour of non-disclosure, there would nevertheless be disclosure even though, whatever test one applied, the public interest was against it. That seems to us not to be a sensible conclusion to reach.

The noble Lord is absolutely right about Amendment No. 14. I have already indicated that we may well come back to that, or something like it, in order to restore what was previously Clause 13(5) of the Bill. I think that I have dealt with all the amendments in the group.

Lord Mackay of Ardbrecknish: Perhaps I may raise one final point. I do so with some reticence given the number of people who are involved in this debate who must read through all these complicated clauses and amendments.

Perhaps I may explore the term "personal data" referred to in Clause 38, where the position is absolute. I understand that "personal data" may be, for example, my records of payments to the Inland Revenue. To be honest, the only thing that would embarrass me would be people knowing how little I have to pay to the Inland Revenue. Nevertheless, payments to the Inland Revenue ought to be fairly private and confidential, as should other matters of that nature.

But papers circulating inside government always have names at the beginning and end. The end usually tells me which official a paper is from, and the beginning usually tells me to whom it has been copied. I recall an awkward experience that I once had with some documents on policy matters--which would

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rightly be covered by this Bill--when they were leaked to the then Opposition, who did not seem to be too bothered about using them; indeed, they used them with alacrity. While I was not happy that policy papers were being leaked, what annoyed me above all was that the name of an official of the department who had written the document came into the public domain and he took a bit of a hammering from interest groups who were not pleased about what would be the effect of the policy.

Would a paper about statistics or whatever, which in all other ways would be available to the public, possibly some years after the policy had been decided, be covered by the term "personal data" because of the name at the end? Or would the name simply be blanked out? Would the names of the people to whom it was copied come under the heading "personal data"? Sometimes, the name of the person to whom a document is copied is a most important piece of information. People say, "I did not know anything about this". Yet the document states that it was copied to them: so either they knew about it and had forgotten; or, if they knew, they were not going to let on; or else they did not bother to open their Red Boxes that day. I wonder whether that will be considered personal information under Clause 38. Frankly, if it is, very few government papers will ever see the light of day. I do not know whether this is the appropriate point for the Minister to reply to this question; however, I hope that I have posed it clearly and I look forward to his reply.

Lord Falconer of Thoroton: I think the question is: are references to people who receive and send documents--the noble Lord refers by way of example to officials, but this could equally apply to Ministers--covered by the expression, "personal data"? In principle, they could be personal data, but the question then becomes: would the data protection principles apply to prevent disclosure? If they did not prevent disclosure, then they could be disclosed. If they did prevent disclosure, it would still be possible to delete the name of the individual concerned and make disclosure of the rest of the document.

I apologise for not dealing with Amendment No. 15 tabled by the noble Lord, Lord Lucas. In effect, it examines whether or not the fact that a matter is closed should be a relevant consideration in regard to whether or not the public interest required disclosure or whether it is under active consideration. I can quite understand why the noble Lord should have selected the currency of information as a relevant factor; but it will be only one factor among many. Public authorities will inevitably have regard to a wide range of factors when deciding on the balance between the public interest in disclosure and the public interest in maintaining an exemption. Whether or not a matter is under active consideration by that authority will be one of those factors. But the legislation requires public authorities to consider applications on their own merits, including all of the prevailing circumstances of the case, when determining that balance and when deciding whether or not it is right to disclose the

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information. We believe that it would be wrong to highlight one specific factor to which the authority must have particular regard, as this may give the impression that there is an overriding factor in the process when clearly that cannot be the case.

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