House of Lords - Explanatory Note
      
House of Lords
Session 1999-2000
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Arrangement of Clauses (Contents)

Freedom Of Information Bill


 

These notes refer to the Freedom of Information Bill
as brought from the House of Commons on 6th April 2000 [HL Bill 55]

Freedom Of Information Bill

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Freedom of Information Bill as brought from the House of Commons on 6th April 2000. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So when a clause or part of a clause does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     In December 1997, the Government issued a White Paper entitled "Your Right to Know" (Cm 3818) on its proposals for a Freedom of Information Act. It sought views by 28 February 1998. More than 550 responses to the White Paper were submitted. Copies were placed in the Library of both Houses of Parliament and published on the Internet.

4.     A draft Bill was published as part of a consultation paper (Cm 4355) on 24 May 1999 followed by a process of pre-legislative scrutiny by committees in both Houses of Parliament and a further period of public consultation. 2248 responses were made as part of the public consultation on the draft Bill. Copies were placed in the library of both Houses of Parliament. A short report on the consultation and details of respondees and a breakdown of the responses on each provision of the draft Bill was published on the Internet.

5.     The Bill creates new rights of access to information. It is intended to supersede the Code of Practice on Access to Government Information. The Bill amends the Data Protection Act 1998 and the Public Records Act 1958.

6.     The Code of Practice on Access to Government Information is a non-statutory scheme which requires Government Departments and other public authorities under the jurisdiction of the Parliamentary Commissioner for Administration to make certain information available to the public and to release information in response to specific requests. The Government's proposals under this Bill create a statutory right of access, provide for a more extensive scheme for making information publicly available and cover a much wider range of public authorities including: local government, National Health Service bodies, schools and colleges, the police and other public bodies and offices. The provisions in the Bill will be regulated by a Commissioner to whom the public will have direct access, rather than access only through the intervention of their Member of Parliament as under the Code. The Bill will permit people to apply for access to documents, or copies of documents, as well as to the information itself.

7.     The Public Records Act 1958 reorganised the arrangements for the preservation of public records. It places a duty on the Keeper of the Public Record Office to provide reasonable facilities for inspecting and obtaining copies of such records. The statutory rights under the Bill and the Information Commissioner's regulatory powers will be extended to information contained in these records.

THE BILL

8.     The Bill's main purpose is to implement the principles set out in the White Paper in so far as it is appropriate to do so by primary legislation. Some matters will be dealt with in secondary legislation, codes of practice or by administrative action.

9.     The Bill:

  • provides a right of access to recorded information held by public authorities;

  • creates exemptions from the duty to disclose information; and

  • establishes the arrangements for enforcement and appeal.

10.     The Bill is in eight parts.

Part I: Access to information held by public authorities

11.     This Part:

  • provides for the general right of access to recorded information held by public authorities and specifies the conditions which need to be fulfilled before an authority is obliged to comply with a request;

  • provides for the Bill to cover the bodies, persons or office holders specified in Schedule 1 and publicly-owned companies and includes a power to specify further public authorities for the purpose of the Bill;

  • allows public authorities to charge fees in accordance with regulations made by the Secretary of State;

  • provides for time limits for complying with a request;

  • requires public authorities to disclose information where the public interest requires this;

  • requires public authorities to state the basis for refusal of a request;

  • renames the Data Protection Commissioner and Data Protection Tribunal (with consequential amendments to other legislation being made in Schedule 2); and

  • requires public authorities to adopt and maintain a publication scheme and to publish information in accordance with it.

Part II: Exempt information

12.     This sets out the circumstances in which the duties on a public authority under clause 1 do not apply. Some of the exemptions apply to a class of information; others rely on the application of a prejudice test or other consequences of disclosure. This Part of the Bill gives the Secretary of State a power to create new exemptions by order.

Part III: General functions of Secretary of State, Lord Chancellor and Information Commissioner

13.     This requires the Secretary of State to issue a code of practice providing guidance to public authorities on various administrative matters, including guidance which authorities should follow when dealing with requests for information. It also requires the Lord Chancellor to issue a code of practice providing guidance to public authorities on the keeping, management and destruction of their records.

14.     Part III places a duty on the Commissioner to promote good practice and public authorities' compliance with the Bill, their publication schemes and codes of practice. The Commissioner is also obliged, where he considers it expedient, to disseminate information to the public about the Bill. The Commissioner is permitted to charge fees with the consent of the Secretary of State for such services. Part III also enables the Commissioner to make practice recommendations specifying what a public authority should do to comply with the codes of practice and requires the Commissioner to lay annual reports before Parliament.

Part IV: Enforcement

15.     This enables an applicant who is not satisfied with the response by a public authority to a request for information to apply to the Commissioner for a decision on whether the authority has acted in accordance with the provisions of the Bill. Subject to certain conditions, for example, the exhaustion of other means of complaint, the Commissioner is under a duty to reach a decision.

16.     This part of the Bill also describes the investigative and enforcement powers of the Commissioner. The Commissioner's powers of entry and inspection are set out in Schedule 3. It confirms that the Bill does not give rise to any right of action against public authorities for breach of statutory duty. This part also provides for a certificate to be issued by an accountable person where the Commissioner has issued a decision or enforcement notice in respect of the disclosure of information under clause 13. The effect of such a certificate is that a public authority need not comply with the Commissioner's notice.

Part V: Appeals

17.     This states the circumstances in which an applicant or a public authority may appeal to the Tribunal when a decision notice, information notice, or enforcement notice has been served. It also states the circumstances in which a party to an appeal to the Tribunal can appeal to the courts on a point of law. It lays down the circumstances in which the Tribunal can hear appeals against the issue of a certificate in national security cases. It also provides for appeal procedures through amendments to the Data Protection Act 1998 as detailed in Schedule 4.

Part VI: Historical records and records in Public Record Office or Public Record Office of Northern Ireland

18.     This effectively replaces the largely discretionary provision for access to public records under the Public Records Act 1958 with a new statutory regime; provides for the access to be enhanced in respect of information contained in records more than thirty years old by disapplying a number of the exemptions in Part II; and imposes formal requirements of consultation or consent between public authorities and the Lord Chancellor in respect of the discretionary disclosure or non-disclosure of such records.

Part VII: Amendments of Data Protection Act 1998: Personal Information held by Public Authorities

19.     With some exceptions and modifications this Part extends the Data Protection Act 1998 provisions about subject access and data accuracy to all personal information held by public authorities. Schedule 6 makes specific provision to extend the 1998 Act to include relevant personal information processed by or on behalf of both Houses of Parliament and makes other minor amendments to that Act.

Part VIII: Miscellaneous and supplemental

20.     This Part:

  • provides for a power to make provision relating to environmental information;

  • provides for a power to repeal or amend existing statutory bars to disclosure;

  • creates an offence of altering etc. records with intent to frustrate a right of access;

  • saves existing powers of public authorities to disclose information;

  • makes provision in respect of defamation;

  • prevents the extension of the Bill to the Scottish Parliament and certain devolved bodies;

  • deals with the application of the Bill to government departments and to Parliament and the Northern Ireland Assembly;

  • defines various terms used in the Bill; and

  • gives effect to repeals of existing legislation in Schedule 7.

21.     Part VIII also sets out the commencement provisions for the Bill. Those provisions in the Bill which do not come into effect on Royal Assent must be brought into force within the following five years unless brought into effect earlier by order of the Secretary of State; meanwhile, the Secretary of State must make annual reports to Parliament on progress towards full commencement.

COMMENTARY ON CLAUSES

Part I - Access to information held by public authorities

Right to information

Clause 1: Right to information

22.     Clause 1 confers a general right of access to information held by public authorities. An applicant has a right to be told whether the information requested is held by that authority (the authority's duty to confirm or deny its holding of information) and, if it is held, to have it communicated to him. Provisions limiting an authority's duty under clause 1 appear in clauses 1(3), (4) and (5), 6, 8(2), 11 and 12 and in Part II. The grounds in clauses 8, 11 and 12 relate to the request itself and the circumstances in which an authority is not obliged to comply with it. The grounds in Part II describe the circumstances in which an authority is not obliged to confirm or deny that it holds information, or to disclose it, by reference to the nature of the information.

23.     Subsection (3) provides that where an authority reasonably requires further information in order to identify and locate the requested information and it requests this from the applicant, it need not comply with clause 1 until the further information is supplied. There are no formal requirements on applicants to describe the information in a particular way, but the description would have to be sufficient for a public authority to be able to identify and locate the information requested. The applicant is not required to describe a particular record.

24.     Subsection (4) exempts public authorities from the duty to confirm or deny that information is held if that duty is disapplied by any provision in Part II.

25.     Subsection (5) states that the authority is not obliged to provide the information requested if it is exempt information. The applicant may still have a right to be told if exempt information is held by the authority. The notes on Part II provide additional information about particular exemptions.

26.     Subsection (6) provides that, although the information communicated to an applicant must be the information held at the time the request was received, account may be taken of amendments or deletions that would have been made in the normal course of events. This is intended to help ensure that requests for information under the Bill do not interfere with the other day-to-day work of an authority or with sound record management.

27.     Subsection (7) provides that where a public authority has communicated information to an applicant, the authority shall be taken to have complied also with its duty to inform the applicant whether or not it holds that information.

Clause 2: Public authorities

28.     Subsection (1) defines the term "public authority" for the purposes of the Bill.

29.     The Bill is intended to have wide application across the public sector at national, regional, and local level. In view of the large number of bodies and offices intended to fall within the scope of the Bill it is not feasible to list each body individually. Public authorities are, therefore, designated in one of the following ways-

    a) on the face of the Bill (in Schedule 1), using generic descriptions where appropriate, which specifies the principal authorities in national and local government, together with the principal public authorities relating to the armed forces, national health service, education, the police and other public bodies and offices;

    b) by order under clause 3(1) adding to Schedule 1 any body or the holder of any office that satisfies certain specified conditions;

    c) by order under clause 4 adding any person that satisfies certain conditions and that appears to the Secretary of State to exercise functions of a public nature or is providing under a contract with a public authority any service whose provision is a function of that authority; or

    d) by reference to the definition of a publicly-owned company in clause 5.

30.     Subsection (2) sets out the circumstances in which information is "held" by a public authority for the purposes of the Bill. This does not extend to holding on behalf of another person or authority. It would not, for example, extend to a Minister's constituency papers just because they were kept by the Minister in his Department. It includes information held elsewhere on behalf of an authority, for example in a private repository.

Clause 3: Amendment of Schedule 1

31.     Subsection (1) provides a power for the Secretary of State to make an order, which will be subject to negative procedure, to add to Schedule 1 a reference to any body or the holder of any office which is not listed and which fulfils certain conditions.

32.     Subsections (2) and (3) list the conditions to be fulfilled before an order under subsection (1) may be made in relation to a particular body or office holder. These are that:

  • any body or office to be listed is established by the Crown or by an enactment or by subordinate legislation or by a Minister in his capacity as Minister or by a government department; and

  • in the case of a body, that it is wholly or partly constituted by appointment made by the Crown or a Minister or a government department; or

  • in the case of an office, that appointments are made by the Crown or a Minister or a government department.

References to a government department in this clause include the National Assembly for Wales.

33.     Subsection (4) provides for a body or office to cease to be a public authority by virtue of its inclusion in Part VI or VII of Schedule 1 if it ceases to satisfy the conditions in subsections (2) or (3).

34.     Subsection (5) enables the Secretary of State to make an order to amend Parts VI and VII of Schedule 1 to remove an entry relating to a body or office which has ceased to exist (subsection (5)(a)) or which does not meet the conditions in subsections (2) and (3) (subsection (5)(b)). An order under subsection (5) must be laid before Parliament after being made (clause 80(4)).

Clause 4: Further power to designate public authorities

35.     Subsection (1) contains a power for the Secretary of State to make an order, subject to affirmative procedure, to include within the scope of the Bill any person or office which is not described in Schedule 1 nor capable of being added to that Schedule by an order made under clause 3(1) but which:

  • appears to the Secretary of State to exercise functions of a public nature, or

  • is providing contractual services to a public authority where the provision of that service is one of the functions of the authority.

36.     Subsection (3) requires the Secretary of State to consult any person in respect of whom he proposes to make an order under subsection (1).

Clause 5: Publicly-owned companies

37.     Subsection (1) defines a publicly-owned company as one which:

  • is wholly owned by the Crown; or

  • is wholly owned by any public authority listed in Schedule 1 other than a government department or an authority which is listed only in relation to particular information.

38.     Subsection (2) defines a company wholly owned by the Crown as a company having no members except:

  • Ministers, government departments or companies wholly owned by the Crown; or

  • any person acting on behalf of the above,

and defines a company wholly owned by a public authority other than a government department as having no members except:

  • that public authority or companies owned by that public authority; or

  • any person acting on behalf of the above.

39.     Subsection (3) defines company as including any body corporate.

Clause 6: Public authorities to which Act has limited application

40.     Subsection (1) provides that where a public authority is listed in Schedule 1 only in relation to specified information nothing in Parts I to V of the Bill applies to any other information held by that authority.

41.     Subsection (2) provides that an order under clause 3(1) may specify that it is only to have effect with respect to particular information.

42.     Subsection (3) enables the Secretary of State by order to amend Schedule 1 by limiting the information in relation to any public authority and by removing or amending that limitation. Such an order is subject to affirmative resolution procedure (clause 80(3)).

43.     Subsection (4) requires that an order made under clause 4(1)(a) must specify the functions with respect to which it has effect. Nothing in Parts I to V of the Bill applies to information held by an authority designated by order under clause 4(1)(a) which does not relate to the specified functions.

44.     Subsection (5) requires an order made under clause 4(1)(b) to specify the services provided under contract to which the designation is to apply. Nothing in Parts I to V of the Bill applies to information held by a contractor designated in such an order which does not relate to the provision of the specified services.

45.     Subsection (6) provides that nothing in Parts I to V of the Bill applies to information held by a publicly-owned company which is excluded information.

46.     Subsection (7) defines excluded information for the proposed subsection (6) as being information specified in relation to a publicly-owned company in an order by the Secretary of State. Such an order is subject to the affirmative resolution procedure (clause 80(3)).

Clause 7: Request for information

47.     This clause lays down the conditions which must be fulfilled for a request for information to be dealt with in accordance with the provisions of the Bill. The conditions include a requirement that the applicant describes the information requested. A request for information can be made by any individual or body without restrictions on the purpose of the application. An applicant will have to identify himself for the purposes of the application, but the identity of the applicant is otherwise of no concern to the authority except in the case of vexatious or repeated requests (clause 12), and personal information (clause 38(1) - if the applicant is the subject of the personal information, the provisions of the Data Protection Act 1998 will apply). In particular, the applicant need not be a United Kingdom national or resident.

Clause 8: Fees

48.     This clause makes provision for authorities to notify applicants that a fee is payable and exempts authorities from being obliged to disclose information until the fee has been paid. The applicant will have three months from the date of notification to pay the fee before his request lapses. This clause also provides for the Secretary of State to make regulations governing the fees that authorities may charge. Such regulations will be able to prohibit a fee with regard to certain types of request, to set an upper limit on amounts that may be charged and to prescribe the manner in which any fees are to be calculated. The regulations will not apply where provision is made under another Act as to the fee that may be charged for the provision of particular information.

49.     It is proposed that the regulations governing fees will specify that up to 10% of the reasonable marginal costs of complying with the request may be charged. This will be a maximum figure and there will be no requirement on an authority to use this formula, or indeed to charge anything. The regulations will provide that the additional costs involved in providing the information in the manner or form requested (disbursements) may be charged in addition to any fee.

Clause 9: Time for compliance with request

50.     This states that an authority must comply with its duty under clause 1 promptly and in any event within 20 working days (or other period, not later than 60 working days, set under regulations) from receipt of a request. If a fees notice is issued, time stops running from the issue of the notice until the fee is received. Working days do not include any Saturday or Sunday or Christmas Day, Good Friday or bank holidays under the Banking and Financial Dealings Act 1971 in any part of the UK.

Clause 10: Means by which communication to be made

51.     This clause permits an applicant to express a preference as to the means of communication of information under clause 1.

52.     Subsection (1) provides that information may be provided in several ways and lists options from which the applicant may choose. The applicant is not restricted to one option but may, for example, inspect and take a copy. The public authority has to comply with his choice(s) so far as reasonably practicable. Subsection (2) provides that cost may be taken into account in considering whether it would be reasonable to comply with the applicant's wishes.

53.     Subsection (3) requires an authority to give reasons for not complying with an applicant's expressed wishes.

54.     Subsection (4) provides that, subject to the wishes of the applicant and cost, an authority may communicate information in any reasonable form taking the circumstances into account. Information may be provided on tape or other suitable means if considered appropriate.

Clause 11: Exemption where cost of compliance exceeds appropriate limit

55.     This clause exempts public authorities from the obligation to disclose the information requested, if the cost of doing so exceeds a threshold prescribed by the Secretary of State. It allows the Secretary of State to prescribe different amounts for different authorities. It enables the Secretary of State to make regulations to allow authorities to aggregate the costs of requests for information where two or more requests are made by one person, or by two or more persons acting together. It also enables the Secretary of State to make regulations governing the matters to be taken into account in calculating the costs, and the manner in which they are to be estimated.

Clause 12: Vexatious or repeated requests

56.     Subsection (1) states that an authority is not obliged to comply with vexatious requests. This is not intended to include otherwise valid requests in which the applicant happens to take an opportunity to vent his frustration.

57.     Subsection (2) states that an authority does not have to comply with repeated or substantially similar requests from the same person other than at reasonable intervals.

Disclosure in the public interest

Clause 13: Disclosure in the public interest

58.     Subsection (1) provides that this clause applies to a request for information where the authority is exempt from the duty to communicate the information requested to the applicant (or would be if it held the information) because of certain provisions in Part II of the Bill The clause does not apply where the disclosure of the information is otherwise required by law. The clause does not apply in relation to information which is exempt under clauses 19, 21, 30, 32, 38(1) and (2), so far as relating to the first condition referred to in that subsection, 39, 42 or 43(2). Nor does it apply to the information to which a certificate under clause 34(6) relates.

59.     Subsection (3) requires the public authority to inform an applicant whether it does or does not hold information, where it appears to the authority that the public interest in disclosure outweighs the public interest in maintaining the exemption in question.

60.     Subsection (4), in relation to a request for information to which this clause applies, provides that where an authority holds the information requested and has informed or intends to inform the applicant of this it shall disclose that information where it appears to the authority that the public interest in disclosing the information outweighs the public interest in maintaining the exemption.

61.     This does not duplicate the process of assessing the request for information against the exemptions. It requires public authorities to consider the public interest in disclosure of the information where there is no obligation to disclose under clause 1.

62.     Subsection (5) requires authorities when making a decision under this clause, where the information is exempt by virtue of it being related to the formulation of government policy etc. (clause 33(1)(a)), to have particular regard to the public interest in communicating factual information which has been used, or is intended to be used, to provide an informed background to decision-making.

63.     Subsection (6) requires an authority to comply with this clause within a reasonable period but not within a specified time limit.

Clause 14: Fees for public interest disclosure

64.     Subsections (1) and (2) of this clause allow an authority to charge a fee (to be determined by the Secretary of State in regulations) for the disclosure of information under clause 13.

65.     Subsection (3) provides that the fees provided for in such regulations do not apply where provision is made under another Act as to the fees that may be charged.

 
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