61. We make two suggestions based on our experience of the pre-legislative scrutiny procedure. First, the committees appointed by Parliament to do this work should be given more notice and more time. The six weeks from the outset of our enquiry to the making of our report was too short for us to make the exhaustive and meticulous investigation that the draft Freedom of Information Bill deserves. We suggest that it should become the rule of that the pre-legislative scrutiny of any Bill which the government intends to include in the legislative programme beginning in the autumn should begin, both inside and outside Parliament, not later than the previous Easter. Two months should be allowed, as now, for public consultation, but Parliament should not be expected to report on the draft Bill shortly before the summer recess. This would allow Parliament time to investigate the draft Bill thoroughly and to consider the public responses received by the government during the public consultation period. It would also allow the government to use the period of summer recess to digest Parliament's report on the draft Bill, before formerly introducing the legislation in the autumn.
The Government recognises the Committee’s desire to have sufficient time to consider Bills in draft and to comment on any public consultation on draft Bills. Whilst the Government will make every effort to bring forward draft Bills as early in the Parliamentary session as possible, it cannot unfortunately guarantee that work will be completed before Easter in every case.
62. Our second suggestion is that wherever possible pre-legislative scrutiny should be undertaken by joint committees of the two Houses. We have enjoyed the closest co-operation and good working relations with the Commons Public Administration Committee, and we are indebted to them. But inevitably the two committees covered much of the same ground and there was unavoidable duplication of effort. Joint committees would be a better use of Parliament's limited resources.
The Government notes the Committee’s comments.
63. The draft bill should provide a framework for transforming the "culture of secrecy" in British government. It should be amended in the ways proposed in this report.
The Government has responded below to each of the Committee’s recommendations.
64. If the draft Bill is to conform to true Freedom of Information principles, the most important single amendment needed 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 (paragraph 21).
The Government agrees that the Commissioner should have a power to recommend a disclosure under the provisions of clause 14 and will amend the Bill accordingly. However, the public interest in disclosure needs to be carefully balanced by Ministers, or other qualified persons, against the public interest against disclosure set out in the exemptions in the Bill. In appropriate cases the courts can intervene through judicial review. In addition, the Government’s intention is to create a change of culture within the public sector to promote greater openness. The delivery of this change of culture will form an important part of the success of the legislation.
65. Exemptions under the draft Bill should conform with the current approach to Public Interest Immunity exemptions, that is there should be scrutiny of the reasons claimed for the exemption and not mere verification of the class into which they fall (paragraph 23).
The Government believes that the class based exemptions set out in the Bill are, indeed, small in number, clearly defined and are fully justified.
66. Save for a limited class exemption for current investigations, all exemptions under clause 25 should be subjected to the test whether they are likely substantially to prejudice the integrity of the judicial process or right to a fair trial (paragraph 24).
67. It should be made clear that the primary public interest in clause 25(2) is the right of individuals to fair investigative proceedings or personal privacy (paragraph 25).
The Government agrees that the right of individuals to fair investigative proceedings or personal privacy is a major public interest in relation to investigation and proceedings. But other public interests are also relevant, including the protection of investigative techniques, protection of the role of informers and ensuring that the criminal courts remain the sole forum for establishing a person’s guilt or innocence.
The Government agrees that the regulatory law enforcement provisions, currently contained within clause 25 (2) of the draft Bill, need not be the subject of a class exemption. The Government agrees with the premise that regulatory investigations do, however, require some protection and, therefore, proposes to give these the protection of a prejudice tested exemption. The Government remains firmly of the view that information relating to informants must be protected in perpetuity and this will remain a class exemption in the Bill. The Government also considers it necessary that criminal investigations and proceedings, currently covered by clause 25(1), have the specific protection of a class exemption. This exemption would continue after the conclusion of the investigation or prosecution This is to preserve the judicial process and to ensure that the criminal courts remain the sole forum for determining guilt. Clause 14 would, of course, apply to information exempt under this head.
68. We are content that the draft Bill should use the term "prejudice" rather than "harm" but believe that "prejudice" alone is not enough to justify exempting information from public access. The draft Bill should be amended wherever "prejudice" is the test for exemption, to require that disclosure would 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 (paragraph 32).
The Government considers that the prejudice test as drafted in the Bill states their intentions clearly. The Government believes that to preface the word ‘prejudice’ within the test with ‘substantially’ would add an unquantifiable standard which may itself cause confusion. The Government does, however, propose to include, within clause 14, a greater steer to public authorities in balancing the public interest when exercising their discretion to disclose.
69. Clause 36 (power to create new and retrospective exemptions) should be left out (paragraph 33).
The Government has noted the recommendation in the report of the House of Lords Select Committee on Delegated Powers and Deregulation that the power to create new exemptions should be limited to those which contain a prejudice test. The Government accepts the recommendation of that Committee and will amend the Bill accordingly. However, the Government considers that it is necessary to retain a mechanism for creating new exemptions in the Bill, albeit that it would expect to use this power only in exceptional circumstances.
70. Background factual information should be distinct and separable from policy advice and taken out of the class exemption for policy advice. Non-policy development information should be exempt only if disclosure "would substantially or would be likely substantially to prejudice" the relevant interests. The test should be an objective one, reviewable by the Information Commissioner and not by the "qualified person" (paragraphs 34 & 35).
The Government believes that it is essential that the class based exemptions for the formulation and development of Government policy and the operation of Ministerial private offices remain. Freedom of Information must allow for the efficient and effective conduct of public affairs. Though the Government does not agree that the exemption for decision making and policy formulation should exclude factual and background information, it recognises that there may be less sensitivity about the disclosure of such material. The Government therefore proposes to provide for an express condition within the discretionary disclosure clause, requiring Departments specifically to consider the public interest in the disclosure of this information.
71. The exemption in clause 37 (effects of disclosure) should be confined 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 (paragraph 37).
The Government proposes to remove this clause from the Bill altogether.
72. The exemption in clause 17 for information intended for future publication "at some future date (whether determined or not)" should be limited to information to be published on a date determined, or to be published within three months of the date of the application for access to the information (paragraph 38).
The Government does not agree that a specific time limit on future publication should be set, nor that a firm date for publication should be available when the exemption is claimed. In some cases a public authority will be able to demonstrate a present intention to publish, more than three months ahead, but not a specific date (for example long term research projects). In such circumstances, the Commissioner will have the power to determine whether the public authority’s action is reasonable and to prevent abuse.
73. The exemption in clause 18 (security matters) should be replaced by a provision that such information is exempt only if its disclosure would substantially or would be likely substantially to prejudice national security or defence (paragraph 39).
The Government does not agree. It is vital that proper protection is afforded to information held by or relating to the security and intelligence agencies. A class-based exemption is therefore appropriate. It is in any case unlikely that information in this area would ever be disclosed, and to suggest otherwise would not be right.
74. It should not be possible for a public authority to turn non-exempt information into exempt information in the possession of another public authority simply by communicating it to that public authority in confidence. The phrase in clause 32(1)(a) should be amended to read "(but not including another public authority)" (paragraph 43).
A public authority must be able to pass information to another public authority in confidence, and have that confidence respected. Without such protection public life would be impossible. It is important to note, however, that the issue of confidentiality only arises in respect of information which has been received by one authority from another: the originating authority cannot claim the protection of confidentiality for information which it has communicated itself. There are two further points to note. First, the exemption applies only if disclosure would constitute a breach of confidence actionable in the courts. Therefore, an authority cannot simply rely on information being labelled as ‘confidential’ if, in fact, no actionable duty of confidence has arisen. Instead the content of information requested must be considered case by case. Second, while it is right that relations between authorities are protected in this way, such protection does not apply between Government Departments. Therefore, clause 68 of the draft Bill expressly provides that a government department is not able to claim for the purposes of clause 32 that the disclosure of any information by it would constitute a breach of confidence actionable by any other government department.
75. As with other exemptions, the test in clause 34(2) (exemption if disclosure would prejudice commercial interests) should be whether disclosure would substantially or would be likely substantially to prejudice commercial interests (paragraph 46).
The White Paper said ‘relations between public authorities and the private sector need to rest on two-way openness and trust’. The scope of the draft Bill is wide and potentially includes a sizeable proportion of private sector organisations in relation to functions they carry out of a public nature as well as much information held by public authorities about private sector organisations. The exemptions must be capable of working effectively for all public authorities and the Bill must not jeopardise the position of private organisations operating in a commercial environment. The Government believes that the Bill as drafted provides the correct degree of protection both in the sort of information protected and the level of harm required for an exemption to apply. In every case where the exemption applies the authority is required to consider any discretion it may have to disclose information where it is in the public interest to do so (clause 14).
76. The draft Bill should provide for notice to third parties likely to be affected by disclosure, either because the information is about them or provided by them. They should also have an opportunity to make representations about disclosure (paragraph 47).
The Government does not agree with this recommendation. Where third parties have existing legal rights, those rights will not be affected by the freedom of information legislation. At present such rights must be enforced by the third party, at their own risk. For example, third parties have a right to protect information given in confidence through injunctions to prevent disclosure, or action for damages for breach of confidence. Public authorities will consult third parties where such rights exist in order to protect themselves from threats of legal action. But the Government does not consider that it would be right to create a new route for the enforcement of private legal rights, the costs of which would fall to the public purse. Where no legal rights exist at present, the Bill does not create new ones. Though it would be good practice for public authorities to consult third parties in circumstances where they might be affected by a disclosure, a statutory duty to do so would be cumbersome and onerous – and would need to be couched in such vague terms as to be practically unenforceable. In the light of this the Government is satisfied that dealing with these matters in the Code of Practice is the sensible way forward.
77. The privilege against self-incrimination by a public authority (clause 44(7)) should be limited to situations where the public authority is itself an individual (paragraph 49).
The Government proposes to remove clause 44(7) from the Bill.
78. Power under Part II to refuse to disclose the existence of information should be confined to circumstances in which disclosure of such existence would be likely to cause substantial prejudice to a protected interest (paragraph 50).
The Government does not agree. There will be circumstances where merely to confirm or deny the existence of certain information will cause harm - the Bill reflects this. In any event to change the prejudice test to one of substantial prejudice would be merely to add an unquantifiable standard, which would cause confusion.
79. There should be a general duty on public authorities to give reasons for refusing to disclose information and these reasons should be made public unless their publication would lead to harm. Even if their publication would lead to harm, the reasons should be disclosed to the Information Commissioner (paragraph 51).
The Government agrees with this recommendation and will amend the Bill accordingly. Disclosure of reasons to the Information Commissioner would, however, only be appropriate in the context of the investigation by the Commissioner of a complaint.
80. Applicants should not be required to give reasons for requesting information. Access is a right, not a privilege with a "need to know" qualification (paragraph 55).
The Government agrees with this recommendation and will amend the Bill accordingly.
81. There should be a maximum period of 20 working days (not 40 days) within which a public authority must comply with its duty to provide information, but provision should be made for appropriate extensions of time with the approval of the Information Commissioner (paragraph 56).
The Government agrees with this proposal and will amend the draft Bill accordingly.
82. The draft Bill does not need a purpose clause but the Long Title should be amended by leaving out the words "make provision about the disclosure of information" and substituting "facilitate the disclosure of information". This would clarify the draft Bill’s purpose of providing a framework for transforming the "culture of secrecy" in British government (paragraph 57).
The Government will amend the long title to reflect the principle set out in this recommendation, but wishes to reflect carefully on the precise words to be used.
83. There should be effective training for officials, with appropriate funding and staff resources to effect a change of culture and to counter any possible backlog in dealing with requests for access (paragraph 58).
The Government agrees. The Home Secretary has set up an Advisory Group on Openness in the Public Sector which will report by the end of the year on, amongst other things, a strategy for training.
83. The criticisms we have made in this report about the shift from an enforceable right of public access to discretionary disclosure apply also to the release of historical records. The proposed code of practice on records management must give clear and robust guidance on best practice, including the handling of electronic records (paragraphs 59 & 60).
The Government has addressed elsewhere the Committee’s criticisms of the balancing of the public interest.
It is intended that the Code of Practice to be made under clause 39 should provide clear and robust guidance to all those covered by the Bill on best practice in this area. This will include advice on the management of electronic records, identifying best practice in this field and citing the standards which are now emerging for the handling of electronic information.
85. It should become the rule that the pre-legislative scrutiny of any Bill which the government intends to include in the legislative programme beginning in the autumn should begin not later that the previous Easter. Joint committees for pre-legislative scrutiny would be a better use of Parliament’s limited resources (paragraphs 63 & 64).
See response to paragraph 61 above.