Select Committee on Draft Freedom of Information Bill First Report


"Third party" rights

40.Complete freedom of information could damage personal privacy and commercial interests. So all Freedom of Information Acts exempt some information from disclosure if it would harm such interests ("third party rights"). This entails two provisions: first, a harm test that will exempt information from disclosure; secondly, a procedure for individuals or companies likely to be harmed to argue against disclosure.

41.In dealing with disclosures of personal information which could damage privacy, the draft Bill incorporates the standards of the Data Protection Act 1998. This is an elegant solution which avoids the sort of conflict between access provisions under data protection legislation and freedom of information legislation that occurs in the United States. On commercial disclosures, the draft Bill provides too much protection for some kinds of information, but no procedures at all for companies to argue against disclosures of information which affect them. Too much protection is given, for example, by the provision (clause 34(1)) making any trade secret absolutely exempt from disclosure with no test of harm.

42.Third party rights of companies and other entities often arise in requests for information either obtained from such entities or information about them. The distinction is important in terms of the draft Bill because clause 32 exempts information provided in confidence while clause 34 exempts information that would prejudice commercial interests.

43.Clause 32 exempts information provided in confidence. It provides exemption for information obtained in confidence by a public authority from another public authority. (Curiously, clause 68 provides that a government department cannot claim such confidentiality, so the exemption applies only to information in confidence between public authorities, such as local authorities, which are not government departments.) This goes too far. 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)".

44.Clause 32 would appear to exempt from disclosure completely any information obtained from a company in confidence. However, the existing law of confidence incorporates a public interest test which would make this exemption less than absolute.

45.The law of confidence protects from unauthorised disclosure information which is communicated in confidence, if the protection is in the public interest. The case of Attorney General v. Jonathan Cape[71] involved an application by the Attorney General to preclude publication of the diaries of a former Cabinet Minister, Mr Richard Crossman MP. The judgment established a rule that when confidential information is in the government's possession it can be protected from disclosure only if the public interest requires protection. In the context of clause 32, this would permit a refusal to disclose information only if the information was provided to the government in confidence and the public interest required that it not be disclosed. The exemption (also in clause 34(1)) for a "trade secret" would be of little protection. A "trade secret" in law is information of commercial value which is protected by the law of confidence.

46.The clause 34(2) exemption for information if its disclosure would "prejudice" commercial interests is too broad. As with other exemptions, the test should be whether disclosure "would substantially or would be likely substantially to prejudice" commercial interests.

Third party procedural rights

47.The White Paper indicated that further thought would be given to the subject of third party rights in terms of procedure. The draft Bill provides only that third parties may be consulted under the terms of a code of practice to be created under clause 38(2)(c). We do not believe that this is enough. 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, as in the Australian, Canadian and Irish Acts.


48.Clause 44(7) is described in the Consultative Document as one which "preserves the privilege against self-incrimination."[72] It provides that a public authority is not required to provide information in response to an information notice from the Information Commissioner if that information would expose the authority to proceedings for an offence, other than an offence under the draft Bill. Mr Hughes, from the Home Office, emphasised that this was not designed to withhold information from general public disclosure, but rather "allows an authority not to comply with an information notice by the Commissioner."[73] We have noted that although the clause would exempt self-incriminatory information from disclosure to the Commissioner, there is no general exemption from disclosure of such information to the public.

49. Mr Hughes explained that "most Government Departments cannot commit offences", so the provision would have limited application.[74] We have reservations about applying the rule against self-incrimination to corporate bodies. The purpose of the rule "is surely to protect individuals or associations of individuals against the state and not for one organ of the state in the wider sense to protect itself against prosecution for misbehaviour."[75] Lord Williams asked us to consider the case of "a public authority as a corporation as it were, not as an individual, [which] had committed, let us say, environmental pollution and was liable to prosecution", but he accepted "that there may well be finally a distinction between the individual and the corporation."[76] The clause is misconceived both for that reason and for the reason given in paragraph 48, and insofar as it extends the privilege beyond individuals, it is wrong. We recommend that the privilege against self-incrimination by a public authority should be limited to situations where the public authority is itself an individual.

Information about information

50.In exchanges during oral evidence, we expressed concern about the frequent provisions in Part II, for example, in clause 25(4), enabling public authorities, in the words of Mr Hughes, to reply to a request for disclosure by saying "I cannot confirm or deny whether the information you requested is held by us."[77] The purpose of such clauses, explained Mr Hughes, was "not to keep it secret. It is to put the decision with the authority rather than with the Commissioner."[78] We do not find this convincing. This leaves too much power with the Minister or public authority. Power 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. We so recommend.

Giving reasons

51.Lord Lester of Herne Hill told the Commons committee that:

In a persuasive written memorandum Mr Andrew Le Sueur[80]argued that:

      "Provision for reasoned decisions should not be regarded as marginal to the project of making government more transparent. It is as important as provision on access to documentary records. The government has, as yet, failed to explain why a general and direct statutory duty to give reasons has been rejected. The main problem with the draft Bill's arrangements is that it further fragments an already confused field of law".

In answer to our questions Lord Williams explained that there was no general duty in the draft Bill to give reasons for refusing a request for disclosure because "there might be circumstances in which ... by giving reasons you are causing the damage that you are hoping to avoid."[81] There would be a duty to give reasons to the Commissioner if so required by an information notice. We believe this would be inadequate. In our opinion it is not enough for a public authority simply to refer to a section of an Act to justify a refusal to disclose. 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 Commissioner.

52.Lord Williams explained to us that the Information Commissioner has power to overrule a public authority's refusal to disclose information on the ground that it is to be published at "some future date".[82] This is because clause 17 requires that such a refusal be "reasonable in all the circumstances". This can lead to a clause 43(4)(a) decision notice that the public authority has failed to communicate requested information in breach of its duty under section 8(1). Clauses 45, 46 and 49 provide further remedies to enforce such a decision notice. However, clause 17 is unique in its requirement of reasonableness. Other exemptions do not have such a reasonableness test, and thus provide far less power to the Commissioner to overrule public authorities which refuse to disclose information.

53.Clause 14 imposes on a public authority the duty to have regard to the public interest in disclosure with the other interest justifying the exemption. It thus applies to all the exemptions listed in clauses 17-34 and 37. The powers of the Commissioner are the same whether the exemption is a class exemption (clauses 17-20, 25, 27, 28 and 29) or an exemption subject to the prejudice test (clauses 21-24, 26, 30, 34 and perhaps 37).

54.If a public authority refuses disclosure, a complainant can use clause 43 to ask the Commissioner to intervene. The Commissioner can then, under clause 43(4)(b), decide whether there has been a failure to comply with, among other things, the requirements of clause 14. In some cases, as in the case of information to be published, the Commissioner can overrule the public authority. In many others, which do not have a "reasonableness" test, the Commissioner can only tell the public authority to think again. The Commissioner's power to require the public authority to provide information to her for the purposes of making her determinations is crucial. Clause 44 only provides that if the Commissioner "reasonably requires any information" she may serve an information notice requiring such information. As the Bill does not require public authorities to give reasons for a refusal to disclose, and in many cases does not even require the authority to confirm or deny the existence of the information requested, it is important that the Bill make clear that the Commissioner has the power to require the authority to confirm or deny to her the existence of requested information, and any further information relating to the refusal. After all, the Commissioner is expressly required to give reasons for issuing an information notice to a public authority[83], and for issuing an enforcement notice to a public authority.[84] Those reasons can be tested and overruled by the Tribunal if it finds that the Commissioner has exercised discretion wrongly. At the very least it should be made clear that there is a duty for public authorities to give reasons to the Commissioner, as Lord Williams suggested.[85]

Limiting disclosures to people and purposes

55.We expressed concern to Lord Williams about the power in clause 14 for public authorities, in considering whether or not to make discretionary disclosures, to require applicants to give reasons for requesting information, and the power to impose restrictions on the further disclosure of information if a discretionary disclosure was made. In reply Lord Williams gave the example of a request for information about evidence to an inquest that the deceased was suffering from Aids although he had not died from it. Lord Williams explained that it might be reasonable to disclose the information to the family, but not to disclose it to someone who wanted the information for the purpose of writing an article for a tabloid newspaper.[86] While we understand Lord Williams' example, it seems to us that such limitations on disclosure to the family of the deceased should be tied to a specific principle. The principle might be formulated to protect families from the disclosure of information relating to a dead member of the family if that member would be entitled to such protection under the Data Protection Act were he still alive.[87] Maurice Frankel of the Campaign for Freedom of Information agreed with the limitation on disclosure to the family in the hypothetical inquest example, but suggested that it should be done by extending the exemptions on disclosures of personal information to include information about the dead, and "not by giving an umbrella power to impose restrictions on all kinds of disclosures somewhere else."[88] Even with a Freedom of Information Act there would be power to make discretionary and limited disclosures, although the possibility of legal sanctions to enforce such limitations is doubtful. In our opinion, the power to require reasons for requesting disclosure and the power to limit further disclosure violate one of the fundamental principles of Freedom of Information. Access is a right, not a privilege with a "need to know" qualification. This is another provision which casts doubt on the draft Bill's effectiveness in changing the culture of secrecy. We recommend that this provision be left out of the draft Bill.

40 or 20 days?

56.Clause 10 provides that an authority must comply with its duty under clause 8 to provide information promptly and in any case within 40 days from receipt of a request. Several witnesses pointed out that 40 days was the longest period to be found in any comparable legislation, and that the limit under the existing voluntary Code is 20 days. It appears that the period of 40 days was chosen to conform with the 40 day period within which requests for subject access must be dealt with under the Data Protection Act 1998. According to the Data Protection Registrar the 40 day period originated as the period for data batching in 1984, in the days of mainframe computers, and cannot be justified today with modern on-line systems and the ability to see more information immediately.[89] On this view, the 40 day period is simply outdated. However, we see some force in the argument that some information requested will not be in electronic form but in paper files, and may therefore take longer to find. We have considered whether it would be desirable to distinguish between electronic and traditionally-held information. We would not recommend this distinction, at least initially. The draft Bill should be amended to provide that 20 working days is the maximum period within which information should be provided from the date of the request, but with appropriate provisions for extensions where necessary with the approval of the Commissioner.

A purpose clause?

57.We have considered whether it would be desirable for a purpose clause to be inserted into the draft Bill. A purpose clause could serve one of two purposes. Either, it could make a definite change to the draft Bill by redressing or readjusting the balance which the Bill strikes between the competing imperatives of freedom of information, confidentiality and privacy. Alternatively, it could make no such definite change to the balance of interests in the draft Bill but it could seek to elaborate or explain ambiguities in the Bill.[90] We believe that the first purpose is better achieved by the amendments we propose in this report. We do not believe that the second purpose is necessary. We do not therefore recommend a purpose clause. We suggest however that there would be advantage in amending the Long Title of the draft Bill by leaving out the words "make provision about the disclosure of information" and substituting "facilitate the disclosure of information". This amendment would clarify the draft Bill's purpose of providing a framework for transforming the "culture of secrecy" in British government.

Training for a new culture of open government

58.In order to give effect to their Freedom of Information Act 1997, the Irish government launched an intensive programme of training for officials. As a measure of the importance the government attached to effective implementation of the Act, fast-stream officials were chosen to direct the implementation programme, and accelerated promotion has been given to outstanding performers. Lord Williams agreed that we too ought to get "the brightest and the best" to take charge of implementing the draft Bill in Whitehall and elsewhere.[91] He is at present chairing, on behalf of the Home Secretary, an advisory group on openness in the public sector, and that group is to report by the end of 1999 on a strategy for delivering more openness in the public sector ahead of legislation and on what is required to facilitate the implementation of the legislation. The report will include proposals for training and dissemination of good practice throughout the public sector.[92] We endorse the need for effective training with appropriate funding and staff resources to effect a change of culture and to counter any possible backlog in dealing with requests for access. As Lord Butler of Brockwell, former Cabinet Secretary, pointed out: "The British Senior Civil Service is brilliant at adapting to things. That is what we recruit them for and train them for, and they will adapt."[93]

Historical records

59.It is desirable that the regime proposed in the draft Bill for access to current records should complement the rules for access to historical records. Part VI of the draft Bill relates to historical records and provides that records become historical records after 30 years. The Bill's other provisions apply to these records, so a refusal to disclose could be appealed to the Information Commissioner. Some of the Bill's exemptions cease to apply after 30 years, consistently with the present regime under the 1993 Open Government White Paper, while others cease to apply only after 75 years or 100 years and some apply indefinitely. These extended closure rules leave many decisions on release of information to the discretion of the public authority rather than give clearly enforceable rights to the public. 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.

60.One of the arguments discerned in favour of Freedom of Information is that it gives public authorities an incentive to keep their records in good order. If reliable records are not created and archived, they cannot be made available to the public. The public authority also benefits from good quality record-keeping. Clause 39 of the draft Bill requires the Lord Chancellor to issue a code of practice on records management, having regard to the public interest in access to records. We believe that the code must give clear and robust guidance on best practice in records management, including the handling of electronic records.

71   [1975] 3 All E.R. 484. Back

72   Paragraph 143. Back

73   Q 29. Back

74   Q 30. Back

75   The words are Lord Goodhart's, Q 38. Back

76   Q 38. Back

77   Q 46. Back

78   Q 48. Back

79   HC Q 5. Back

80   Reader in Laws at University College London. The memorandum has been printed with the Commons Public Administration Committee's report on the draft Bill, HC (1998-99) 570-I and 570-II. Back

81   QQ 60, 63. Back

82   Q 522. Back

83   Clause 44(2)(b). Back

84   Clause 45(3)(a). Back

85   Q 60. Back

86   Q 64. Back

87   Q 70. Back

88   Q 198. Back

89   In her evidence to the Commons Public Administration Committee, Q 202. Back

90   Q 568. Back

91   Q 515. Back

92   Q 516. Back

93   Q 410. Back

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