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Lord Falconer of Thoroton: The intention of the amendment of the noble Lord, Lord Lucas, is that one's motive in making the application should be irrelevant to the issue of whether or not one gets the information. Officials dealing with the application should not be able to seek to determine the motive because the question of whether one agrees with it is irrelevant. The Government agree entirely with that approach. They do not believe that an amendment is required to make it clear.
The way the Bill operates is that once one establishes a right under Clause 1--unless it is in an exemption and one is not entitled to it--and what is presently Clause 13 one is entitled as of right to that information. I do not think that we need to put that on the face of the Bill. I hope that saying that here makes it clear that the Bill is intended to be applicant blind.
I should take up and endorse the point made by the noble Lord, Lord Mackay of Ardbrecknish. It is perfectly legitimate for the official to have a discussion with the applicant with a view to helping the applicant refine the request he or she is making so as to use better the provisions of the Bill. That is only for the purpose of assistance, not for examining motive with a view to determining whether to proceed with the request because that is quite irrelevant in the context of the Bill as drafted.
Lord Lucas: That is a very satisfactory answer but I would be grateful for guidance as to what happens if there is a public interest test involved. If an official has to decide if there is a public interest in disclosure, presumably there is a strong temptation to inquire into what use is going to be made of the information because that is what he would like to use to establish the public interest in disclosure. I would be grateful to know how that conflict is resolved.
Lord Falconer of Thoroton: As far as public interest between disclosure on the one hand and the maintenance of exemption on the other is concerned, it has to be looked at objectively. One looks at the impact of disclosure, that is, making it public. What is the impact of the exemption being maintained? That should be looked at objectively rather than in terms of whatever the motive may be of the person applying. That does not mean that the motive of the person applying may not coincide with factors that could be relevant to what damage may be done and what assistance could be served by making the matter public. But individual motives will not be relevant to that.
I turn to Amendments Nos. 6 and 24 proposed by the noble Lords, Lord Lester of Herne Hill and Lord Goodhart. Amendment No. 6 removes from Clause 1(6) the provision that although the information that
should be communicated is the information held at the time when the request is made, the authority may take account of any amendment or deletion made between that time and the time the information is to be communicated. The amendments or deletions may only be those that would have been made regardless of the receipt of the request. Amendment No. 24, tabled by the same noble Lords, instead provides that an authority, having identified a record that contains or may contain information the subject of a request, shall take all reasonable steps to protect the record from alteration or destruction until the request has been finally determined including the determination of any appeal. I agree with the intention behind the amendment. Authorities should not be permitted to evade their responsibilities under the Bill by altering or destroying information that ought properly to be disclosed. Obviously, that is why the Bill contains the offence in Clause 75 of altering or destroying records with the intention of preventing disclosure.As is implicit in what the noble Lord, Lord Lester of Herne Hill, said, that deals with the "bad faith" type case. There are practical considerations why the wider proposals that go beyond bad faith will not work and why the Bill is drafted as it is. In the first place, the amendments would prevent the authority from updating information it held. In many cases the information may be of a type that changes rapidly; statistical information, for instance. This sort of information will be updated frequently. The amendment would prevent this happening with the result that the applicant would be supplied with out-of-date information. The authority would also be prevented from carrying on its work as normal because the file was, in effect, frozen. This is of particular significance in relation to electronic data.
In the second place, freedom of information should not hamper authorities from carrying out normal records management procedures. The Lord Chancellor's code of practice made under Clause 45 of the Bill will set out desirable practices for authorities to follow. This will include the regular disposal of irrelevant or ephemeral records in accordance with the disposal policy. The amendment would prevent such routine good management, and particularly where an authority received high volumes of requests it could find many of its files constantly frozen. I repeat that where it does it deliberately, that is caught by Clause 75.
Having said all that and subject to the need to update records and the need not to hamper normal records management procedures, where a request is made and the authority knows that it is made it should be told that it is good practice to keep the information for the purposes of answering the request. That provision will be added to the appropriate codes of practice. I suspect that it is best dealt with under codes of practice rather than by any amendments to the Bill. In those circumstances I invite the noble Lord not to pursue the three amendments.
5.45 p.m.
Lord Lester of Herne Hill: Speaking to Amendments Nos. 6 and 24, I am grateful to the Minister for what he said. I appreciate that we are dealing with good practice. It may be undesirable to create legalistic restraints, and it is not our purpose to hamper good administration. It seems that we have a common purpose on all sides of the House. The point raised by the noble Lord, Lord Mackay of Ardbrecknish, about the need to ensure that records are not rationalised ex post facto in a way that distorts the true record of the time seems very compelling. No doubt, that will need to be addressed in some way in the code of practice, as will the need to ensure that even where there has not been a request for information important records are not inadvertently destroyed. There needs to be some safeguard of an administrative kind that ensures that that is so because of the importance of history and of the need for historians and others to find out exactly the basis of particular decisions made by governments and public authorities.
I am persuaded that it is not necessary to pursue these issues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton moved Amendment No. 7:
- Page 2, line 15, at end insert--
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Lord Falconer of Thoroton moved Amendment No. 9:
("(8) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as "the duty to confirm or deny".").
After Clause 1, insert the following new clause--
(" .--(1) In respect of any information as respects which any provision of Part II provides that the duty to confirm or deny does not arise, section 1(1)(a) does not apply, except to the extent that--
(a) the duty to confirm or deny is excluded only by a provision not conferring absolute exemption, and
(b) in all the circumstances of the case, the public interest in disclosing whether the authority holds the information outweighs the public interest in maintaining the exclusion of the duty to confirm or deny.
(2) In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) does not apply, except to the extent that--
(a) the information is exempt information only by virtue of a provision not conferring absolute exemption, and
(b) in all the circumstances of the case, the public interest in disclosing the information outweighs the public interest in maintaining the exemption.
(3) For the purposes of this section, the following provisions of Part II (and no others) are to be regarded as conferring absolute exemption--
(a) section 19,
(b) section 21,
(c) section 30,
(d) section 32,
(e) section 34 so far as relating to information held by the House of Commons or the House of Lords,
(f) in section 38--
(i) subsection (1), and
(ii) subsection (2) so far as relating to cases where the first condition referred to in that subsection is satisfied by virtue of subsection (3)(a)(i) or (b) of that section,
(g) section 39, and
(h) section 42.").
The noble and learned Lord said: I have already spoken to this amendment. I formally move.
The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the House that should Amendment No. 10 be agreed to, I cannot call Amendment No. 11 due to pre-emption.
Lord Goodhart had given notice of his intention to move Amendment No. 10:
[Amendment No. 10, as an amendment to Amendment No.9, not moved.]
[Amendments Nos. 11 to 15, as amendments to Amendment No. 9, not moved.]
Leave out lines 8 to 10 and insert ("maintaining the exclusion of the duty to confirm or deny outweighs the public interest in disclosing whether the authority holds the information").
The noble Lord said: I have already spoken to Amendment No. 10. I would like to say that having heard what the noble and learned Lord, Lord Falconer said, this is something that we take seriously. It is something we are likely to bring back but whether we press it on return depends on whether the Government, having taken the matter away, come back with the result of further consideration. Having said that, I think that the amendment has not been formally moved and therefore I do not move it.
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