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Behind closed doors

Labour has been committed to Freedom of Information for 25 years. Tony Blair promised a "new relationship between government and people". However, Maurice Frankel, Director of the FOI Campaign, finds an unashamed anti-disclosure bias in Jack Straw's Bill.

What kind of Freedom of Information (FOI) Act is the government planning to introduce? Well, it is an Act which will provide no right of access to the scientific advice on a food hazard such as BSE; to reports into the causes of accidents such as the Paddington rail crash; to estimates of the number of jobs that might be lost by new initiatives such as a possible fox hunting ban; or to the date on which the police first learnt the names of the Stephen Lawrence murder suspects.

It wasn't meant to be like this. Labour has been committed to FOI for 25 years and Tony Blair promised a radical reform that would "signal a new relationship between government and people". The government's bold 1997 white paper seemed to be delivering it. The proposals were warmly received in the UK, and regarded with some wonder overseas. The Commissioner who oversees Canada's FOI law noted that his country's once state-of-art legislation had been overtaken "by the nation that raised secrecy to an art form, that produced Yes Minister and Sir Humphrey's law". Britain's white paper had, he said "left Canada trailing in the dust".

But the draft bill which followed produced a different kind of amazement: for its unashamed anti-disclosure bias. It is a basic principle of FOI laws that applicants don't have to demonstrate a 'need to know' Yet the draft bill gave authorities the right to demand to know why you wanted information, and to release it on condition you didn't pass it to a journalist. Harmless information could be refused if, combined with other unspecified information which the authority had no intention of releasing, it could prove harmful. Authorities could refuse to give the Information Commissioner information which showed they had been guilty of an offence. The list went on. These unacceptable provisions have since been dropped. But the proposals remain deeply flawed.

There is some good news. Virtually all public bodies - apart from the security services - will be subject to the legislation, from government departments to local authorities, quangos, GPs, universities and Parliament itself. Some private bodies with public functions will also be caught. Access will be retrospective, covering both new information and old files. Charges would be moderate, with requesters paying no more than 10 per cent of the actual costs. And the measure would be enforced by an Information Commissioner with the power to order disclosure - at least in some cases.

Now the problems. The white paper proposed that authorities wanting to withhold information must prove that disclosure would cause "substantial harm", a demanding test. The draft bill waters this down to the "prejudice", making the avoidance of disclosure much easier.

More seriously, in key areas, blanket exemptions allow information to be withheld without any evidence of harm at all. A gigantic hole at the heart of the bill allows all information which "relates to formulation or development of government policy" to be withheld. This is not restricted to civil service advice. Everything that crosses the policy-maker's desk is caught: scientific advice, statistics, extrapolations of existing trends, descriptions of current practice -even the weekly summary of press cuttings. The scope is ludicrous, but there is nothing funny about the implications. Ministers will be able to evade the most basic questions about the justification for their policies.

The Bill will actually remove existing rights under the Conservatives' open government code. To withhold policy information under the code departments must show that disclosure would harm the frankness of internal discussions. The Bill permits secrecy even where there would be no harm. The code has another advantage: it requires departments to publish the facts and analysis of the facts behind new decisions - material which the bill exempts altogether.

The contrast with Ireland's 1997 FOI Act is even starker. The facts and their analysis, scientific or technical advice cannot be refused at all. Even Cabinet papers can only be withheld for five years. Irish ministers wishing to protect their advice must show that disclosure would "be contrary to the public Interest". Ireland's Information Commissioner has ruled that analysis of options which are actively under consideration can be withheld, but once decisions have been taken are likely to have to be disclosed - so people can see whether decisions were justified.

In evidence to the House of Commons Public Administration select committee the Home Secretary, Jack Straw at least agreed that background factual information "on the whole ought to be disclosed". Astonishingly, the government has failed to endorse even this modest proposition. Their conservatism can be judged from the fact that the former Cabinet Secretary, Sir Robin Butler, said the release of such information was "a change we could pretty readily bring about". Instead, the Bill will merely encourage departments to release such information, a feeble gesture.

Another blanket exemption applies to information about investigations by the police and regulatory bodies. If enquiries could lead to charges for an offence, then all information is exempt - even if it is later decided not to prosecute. The effect will be a fog of secrecy not only over police investigations but those into accidents, food poisoning incidents, dodgy traders, fraudulent charities, animal cruelty and any investigation by a regulator which raises the possibility of an offence. Purely routine investigations, which would originally have been covered by the same blanket exemption will however now be disclosable subject to a "prejudice" test.

Authorities would have to consider the discretionary release of exempt information in the public interest, which may be the only way of obtaining the facts behind new decisions. But ministers and authorities - not the Information Commissioner - will decide what is in the public interest. A House of Lords Select Committee which looked at the draft Bill said this approach amounted to "a statement of good intentions, but...not a Freedom of Information Act as that term is traditionally understood". The Public Administration committee also called for the Commissioner to be able to order disclosure on these grounds.

But the government has only agreed to allow the Commissioner to recommend release of information in the public interest. It has rejected calls for the Commissioner to be able to compel disclosure, as other countries' Commissioners can. So an authority which has squandered public funds, negligently failed to protect people's safety, broken its own rules on conflict of interest or otherwise demonstrated its incompetence, would be given the right to decide whether the public interest justifies full disclosure - a farcical situation.

Ministers' caution might be understandable if the Commissioner's rulings were unchallengeable. But the draft bill already allows authorities to appeal against them to a tribunal and thereafter to the courts. There is no case for allowing authorities to ignore the Commissioner on this issue altogether. The government has moved on some issues. It has removed some of the unacceptable restrictions from the draft Bill; reduced the time authorities would have to respond to requests, from 40 days to 20 working days; and strengthened the duty of authorities to give reasons for withholding information.

But plenty of other loopholes remain. Authorities will be able to withhold information which, in their "opinion would be harmful to frankness" or prejudice "the effective conduct of public affairs''. Giving legal weight to their "opinions'' will make most decisions immune from challenge. The government has not accepted the select committee's recommendation that to withhold information authorities should show that disclosure would cause "substantial prejudice'' instead of just "prejudice". A blanket exemption for information supplied in confidence, and a broad exemption for disclosures which could prejudice commercial interests will protect lobbying by vested interests and provide unlimited scope for claims of commercial confidentiality. The prospects for FOI now depend on how willing MPs are to accept such substandard legislation. In. October, a Commons early day motion calling for a tougher bill attracted more than 160 signatures in its first few days. Labour MPs should make clear that a bill which allows ministers such unrestricted freedom to suppress information will not attract their support.

Maurice Frankel is director of the Campaign for Freedom of Information

November/December 2000