hat 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;
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
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
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