House of Lords - Explanatory Note
Freedom Of Information Bill - continued          House of Lords

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Refusal of request

Clause 15: Refusal of request

66.     Subsection (1) requires a public authority which is relying on a claim that the duty to confirm or deny that it holds the information does not arise (as conferred by any provision in Part II) or on a claim that the information is exempt information, to give the applicant notice of that fact, specifying the exemption in question and stating (if that would not otherwise be apparent) why the exemption applies. Such a notice must be given within the time limit set down for complying with requests.

67.     Subsection (2) provides that where the authority has not yet reached a decision on the exercise of its discretion, the notice under subsection (1) must indicate this.

68.     Subsection (3) provides that where an authority has decided under clause 13 that, in all the circumstances of the case, the public interest in disclosing whether the information is held or the public interest in disclosing any information does not outweigh the public interest in maintaining an exemption , the authority must state the reasons for its decision either in the notice given under subsection (1) or in a separate notice given within a reasonable time.

69.     Subsection (4) provides that a public authority is not obliged to make a statement under this clause if, or to the extent that, the statement would involve the disclosure of information that would itself be exempt.

70.     Subsection (5) provides that where a public authority is relying on a claim that the cost of complying with the request would exceed the appropriate limit, or that the request is vexatious or repeated, then it must give the applicant notice of that fact within the time limit set down for complying with requests.

71.     Subsection (6) provides that if the request is vexatious or it repeats an earlier request and the authority has already given the applicant a notice in relation to a previous request for information stating that it is relying on such a claim, the authority is not obliged to give the applicant notice of the reason for its refusal if, in all the circumstances, it would be unreasonable to expect it to serve a further notice.

72.     Subsection (7) provides that a notice under subsection (1), (3) or (5) must contain particulars of any procedure the authority has for dealing with complaints, or a statement that the authority does not have such a procedure, and must contain particulars of the right conferred by clause 49 (application for a decision by the Commissioner).

The Information Commissioner and the Information Tribunal

Clause 16: The Information Commissioner and the Information Tribunal

73.     Subsections (1) to (3) rename the Data Protection Commissioner as the Information Commissioner and the Data Protection Tribunal as the Information Tribunal. The Commissioner and the Tribunal are to have functions both under the Data Protection Act and under the Bill. Consequential amendments to the Data Protection Act 1998 and other legislation are included in Schedule 2.

74.     Subsection (5) provides that if the Data Protection Commissioner in post immediately before the Bill is passed remains in office for the two years after that time, he shall leave office at the end of that period. Subsection (6) allows the re-appointment of a person whose appointment is terminated by subsection (5).

75.     Subsection (7) provides that, if a previous Data Protection Commissioner is re-appointed as Information Commissioner, any previous terms of office served by virtue of an appointment made before the passing of this Bill are disregarded in determining the length of time for which he can serve in the new post.

Publication schemes

Clause 17: Publication schemes

76.     This clause places a duty on every public authority covered by the Bill to adopt and maintain a scheme which relates to the publication of information by the authority, to publish information in accordance with it and to review it from time to time. The scheme has to be approved by the Commissioner. Subject to the need to obtain this approval, and to the requirements discussed below and set out in this clause, each authority is free to draw up its own scheme and so can tailor its proposals to its particular circumstances.

77.     The clause requires public authorities to adopt a scheme specifying the classes of information which it publishes or intends to publish, the manner of publication and whether the information is available to the public free of charge or on payment. This clause is a step beyond the core access rights created by clause 1.

78.     A publication scheme is intended to be a guide to the authority's publications and policy. It can be either general or specific, for example, an authority might propose that minutes of a particular committee would be published within a specified interval of time. As required in subsection (2) a scheme must describe the types of information the authority intends to publish, the manner in which it will be published, and whether there will be a charge.

79.     Subsection (3) requires a public authority, when adopting or reviewing a scheme, to have particular regard to the public interest (a) in allowing the public to have access to information held by the authority and (b) in the publication of reasons for decisions made by the authority.

80.     Subsection (4) requires an authority to publish its publication scheme but allows it to do so in whatever way it thinks fit.

81.     Subsections (5) to (7) concern the approval of publication schemes. The Commissioner may refuse to approve a scheme, approve it only for a specified period, or revoke his approval. The Commissioner must give reasons for refusing to approve or for revoking approval to a scheme.

82.     Material made generally available in accordance with a publication scheme would be exempt under clause 19 from the right of access. As such, the authority would not be obliged to respond to requests for it on an individual basis.

Clause 18: Model publication schemes

83.     This clause gives authorities the option of adopting an 'off-the-shelf' scheme, which may have been prepared by the Commissioner, or others, rather than preparing their own. For example, a scheme could be prepared for all schools, which each individual school could adopt, or all district authorities in a county might work together to prepare a model scheme, which would then be jointly adopted. This would enable better use to be made of resources in that the Commissioner would not have to approve a large number of draft schemes and authorities could work together in preparing model schemes. A model scheme could be adopted by an authority with or without modifications. (If modifications are proposed, the further approval of the Commissioner is required in relation to those modifications.)

84.     The clause contains provisions for approval, refusal to approve and revocation of approval of schemes which are comparable to those for individual schemes, except that when revoking his approval of a model publication scheme the Commissioner must publish a notice to this effect which must include a statement of his reasons.

Part II - Exempt information

85.     Part II of the Bill sets out the grounds on which public authorities may be exempt from the duties under the provisions of clause 1. Some exemptions are class based; that is if the information is of the type described, an exemption can be claimed. Others refer to the harmful consequences of disclosure.

Clause 19: Information accessible to public by other means

86.     Clause 19 exempts information if it is reasonably accessible to the applicant by other means. This covers information even though it is available only on payment and information available by virtue of other legislation. Information which is available for inspection, whether voluntarily or under another enactment, will only be exempt by virtue of this clause if it is not in fact reasonably accessible to the applicant. Examples of the type of information covered by this exemption include: books and pamphlets published by an authority, or birth, marriage and death certificates available under other legislation.

87.     The clause does not apply simply because the information is available from the public authority itself on request (other than information which the authority is obliged by or under any enactment to make available), unless it is made available in accordance with the authority's publication scheme and any payment required is specified in or determined in accordance with that scheme.

Clause 20: Information intended for future publication

88.     This clause exempts information which is intended to be published where it is reasonable that the information should not be disclosed until the intended date of publication. Examples of the type of information covered by this exemption include information relating to research projects which it would be inappropriate to publish until the project had been completed, or statistical information which is usually published to a specific timetable (annually, quarterly etc). This exemption is related to the duty to adopt a publication scheme (clauses 17 and 18). Where a publication scheme states that an authority will publish information on specified dates or at specified intervals the authority would normally be able to rely on this exemption in relation to particular requests for such information.

89.     Subsection (2) provides that the duty under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, itself, disclose information which it is reasonable to withhold until the publication date. This might apply where, for example, to be told that information relating to amendments to taxation is held would reveal that tax rates are to be amended, and therefore it would be reasonable for an authority neither to confirm nor deny that such information is held pending publication of the relevant policy proposals or decisions.

Clause 21: Information supplied by, or relating to, bodies dealing with security matters

90.     Clause 21(1) exempts, as a class, all information directly or indirectly supplied by, or relating to certain bodies dealing with security matters.

91.     Subsection (2) provides that a certificate signed by a Minister of the Crown is conclusive proof that the information is of the type in question, subject to a right of appeal to the Information Tribunal under clause 59.

92.     Subsections (3) and (4) set out the bodies concerned.

93.     Subsection (5) provides that the obligation under clause 1(1)(a) to confirm or deny whether or not the authority holds the information does not arise if to comply would itself disclose information which is exempt by virtue of subsection (1).

Clause 22: National security

94.     Clause 22 exempts information not covered by clause 21, where an exemption is required to safeguard national security. A certification process is provided which is similar to that in clause 21.

95.     Subsection (2) provides that the obligation under clause 1(1)(a) to confirm or deny whether the requested information is held does not arise where such an exemption is required in order to safeguard national security.

96.     Subsection (4) allows a certificate to describe information by means of a general description. A certificate may apply to information existing at the time the certificate is issued or it may also cover information acquired or recorded at a later date.

Clause 23: Certificates under ss 21 and 22: supplementary provisions

97.     Clause 23 makes supplementary provision to the certification process under clauses 21 and 22, for evidential purposes. It restricts the power to sign a certificate to a Cabinet Minister, the Attorney General, the Attorney General for Northern Ireland or the Advocate General for Scotland.

Clause 24: Defence

98.     Clause 24 exempts information the disclosure of which would, or would be likely to, prejudice the defence of the British Islands or any colony or the capability, effectiveness or security of the armed forces.

99.     The expression "the British Islands" is defined in Schedule 1 to the Interpretation Act 1978 as meaning the United Kingdom, the Channel Islands and the Isle of Man. The expression "colony" is also defined in that Schedule.

100.     Subsection (3) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) where to comply would, or would be likely to, result in the harm set out in relation to defence.

Clause 25: International relations

101.     Subsection (1) exempts information the disclosure of which would, or would be likely to, prejudice relations between the United Kingdom and any other State or international organisation, or international court, the interests of the United Kingdom abroad, or the promotion or protection by the United Kingdom of those interests. The definition of "State" includes the Government of any State and any organ of such government.

102.     Subsection (2) exempts confidential information obtained from a State or international organisation or international court. Subsection (3) sets out what is meant by "confidential" for this purpose.

103.     Subsection (4) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or (2) if to comply:

  • would, or would be likely to, result in the harm set out in relation to international relations; or

  • would itself involve the disclosure of confidential information (whether recorded or not) obtained from another State or international organisation.

Clause 26: Relations within the United Kingdom

104.     This clause exempts information which would, or would be likely to, prejudice relations between any two administrations in the United Kingdom (as defined in subsection (2)).

105.     Subsection (3) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in harm of the kind described.

Clause 27: The economy

106.     This clause exempts information the disclosure of which would, or would be likely to, prejudice the economic interests of the United Kingdom or the financial interests of any administration in the United Kingdom, (which would include, for example, budgetary interests).

107.     Subsection (2) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, prejudice the interests mentioned in subsection (1).

Clause 28: Investigations and proceedings conducted by public authorities

108.     Subsection (1) exempts, as a class, any information held at any time by a public authority for the purposes of a criminal investigation or criminal proceedings conducted by it.

109.     Subsection (2) additionally exempts, as a class, information relating to the obtaining of information from confidential sources (informers) if it was obtained or recorded for the purposes of the authority's functions relating to:

  • criminal investigations;

  • criminal proceedings;

  • the investigations referred to in clause 29;

  • civil proceedings which arise from such investigations.

110.     Subsection (3) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsections (1) or (2).

111.     Subsection (4) treats proceedings instituted or conducted by certain connected persons as being instituted or conducted by the public authority.

112.     Subsection (5) provides that 'criminal proceedings' includes certain court-martial and disciplinary proceedings and proceedings before a Court-Martial Appeal Court and a Standing Civilian Court; corresponding provision is made in relation to 'offence'.

113.     Subsection (6) modifies this clause in its application to criminal proceedings in Scotland.

Clause 29: Law enforcement

114.     Subsection (1)(a) to (f) exempts information the disclosure of which would, or would be likely to, prejudice certain specified law enforcement matters. Subsection (1)(g) exempts information which would, or would be likely to, prejudice the exercise by any public authority of its functions for any of the purposes specified in subsection (2). This subsection essentially protects the conduct of investigations and proceedings which may lead to prosecutions. Subsection (1)(h) exempts information which would, or would be likely to, prejudice civil proceedings brought by an authority arising out of investigations conducted for the purposes set out in subsection (2). Subsection (1)(i) exempts information which would, or would be likely to, prejudice any inquiry under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 arising out of an investigation conducted for the purpose set out in subsection (2).

115.     Subsection (2) sets out the purposes referred to in subsections (1)(g), (h) and (i). These include:

  • investigations into whether circumstances exist or may arise justifying regulatory action under any enactment;

  • regulatory investigations relating to unfitness or incompetence of company directors;

  • investigation of persons in regulated professions or who carry out activities which require a licence;

  • investigations into accidents;

  • action relating to charity management;

  • action relating to health and safety.

116.     Subsection (3) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) and to comply would, or would be likely to, prejudice any of the law enforcement matters referred to in this clause.

Clause 30: Court records, etc

117.     This exempts, as a class, information contained in specified records. The obligation under clause 1(1)(a) to confirm or deny that the requested information is held and the obligation under clause 13 to make a disclosure in the public interest do not apply to such information.

118.     This clause exempts information which is held by a public authority solely by virtue of the fact that it is contained in documents:

  • filed with, or placed in the custody of, a court, or

  • served upon, or by, the public authority for the purposes of such proceedings, or

  • which a court has created for the purpose of such proceedings (for example, bench memoranda).

119.     Subsection (2) of this clause extends the clause to statutory inquiries (including those to which the Tribunals of Inquiry (Evidence) Act 1921 applies) and to arbitrations. In either case, evidence could be given to the inquiry or arbitration by third parties and the inquiry could create documents of its own. A public authority could find itself holding this information either because it was a party or because inquiry papers were held by it.

120.     Subsection (4) contains a definition of "court" which is the same as that in section 19 of the Contempt of Court Act 1981, thereby bringing in tribunals and other bodies exercising the judicial powers of the State. This clause also applies to the judicial functions of coroners and documents relating to any particular inquest or post-mortem examination.

121.     This clause does not apply to information which a public authority holds otherwise than in the documents specified, even though the information may relate to, and be deployed in, connection with particular proceedings.

Clause 31: Audit functions

122.     Subsections (1) and (2) of this clause exempt the disclosure of information which would, or would be likely to, prejudice the exercise by any public authority of its auditing functions. The clause relates to the audit of the accounts of other public authorities, or examinations into the efficiency, economy and effectiveness with which they use their resources to discharge their public functions. The clause would not extend to the internal auditing functions of authorities.

123.     Subsection (3) provides that the duty to confirm or deny does not arise if compliance with section 1(1)(a) would prejudice the authority's auditing functions.

Clause 32: Parliamentary privilege

124.     This clause exempts information if this is required for the purpose of avoiding an infringement of the privileges of either House of Parliament. Subsection (2) provides that the duty to confirm or deny does not apply insofar as that exemption is required for the purpose of avoiding an infringement of the privileges of either House.

125.     Subsections (3) and (4) make provision for the Speaker of the House of Commons, in relation to that House, and the Clerk of the Parliaments, in relation to the House of Lords, to sign certificates as conclusive evidence that the exemption applies.

Clause 33: Formulation of Government policy etc.

126.     Subsection (1) provides that information held by a government department is exempt, as a class, if it relates to the formulation or development of government policy, ministerial communications, Law Officers' advice or the operation of a Ministerial private office.

127.     Subsection (2) provides that the duty to confirm or deny does not arise in relation to this information.

128.     Subsection (3) defines "the Law Officers", "Ministerial communications" and "Ministerial private office" for the purposes of this clause.

Clause 34: Prejudice to effective conduct of public affairs

129.     This clause relates to information held by government departments which is not exempt by virtue of clause 33 and information held by other public authorities. Subsection (2) provides that information is exempt if, in the reasonable opinion of a qualified person, its disclosure:

  • would, or would be likely to, prejudice the maintenance of the convention of collective ministerial responsibility,

  • would, or would be likely to, prejudice the work of the Executive Committee of the Northern Ireland Assembly,

  • would, or would be likely to, inhibit the free and frank provision of advice or exchange of views, or

  • would otherwise prejudice, or would be likely to otherwise prejudice, the effective conduct of public affairs.

130.     Subsection (3) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (2) if in the reasonable opinion of a qualified person to comply would, or would be likely to, have any of the adverse effects referred to.

131.     Subsection (4) defines a "qualified person". For a government department in the charge of a Minister it is a Minister of the Crown. For the Northern Ireland department it is the Northern Ireland Minister in charge of the department. For other government departments it is to be the person in charge of that department. For the House of Commons it is the Speaker of the House. For the House of Lords it is the Clerk of the Parliaments. For the Northern Ireland Assembly it is the Presiding Officer. For Northern Ireland bodies dealing with transferred matters it is the Northern Ireland First Minister or Deputy First Minister acting jointly, or another Northern Ireland Minister nominated by them. In relation to the National Assembly for Wales it means the Assembly First Secretary and for any subsidiary under section 99(4) of the Government of Wales Act 1998, the Assembly First Secretary or any officer or employee authorised by the Assembly First Secretary. For the National Audit Office it means the Comptroller and Auditor General. For the Greater London Authority it means the Mayor of London and for any functional body within the meaning of the Greater London Authority Act 1999 it means the chairman of that functional body. (The functional bodies are the London Development Agency, the London Fire and Emergency Planning Authority, Transport for London and the Metropolitan Police Authority) For other public authorities it is to be a Minister of the Crown unless the authority or other person is authorised by a Minister of the Crown.

132.     Subsection (6) makes provision that a certificate signed by the Speaker of the House of Commons, in relation to that House, or the Clerk of the Parliaments, in relation to the House of Lords, shall be conclusive evidence that in his reasonable opinion, disclosure of information held by either House, or compliance with clause 1(1)(a), would have the effects mentioned in subsection (2).

Clause 35: Communications with Her Majesty, etc. and honours

133.     Subsection (1) exempts as a class, all information relating to the award of honours by the Crown and to any communications with the Royal Family or Household.

134.     Subsection (2) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise if the information is exempt by virtue of subsection (1) or would be if the information existed.

Clause 36: Health and safety

135.     Subsection (1) exempts information the disclosure of which would, or would be likely to, endanger the physical or mental health or safety of any individual.

136.     Subsection (2) provides that the obligation under clause 1(1)(a) to confirm or deny that the requested information is held does not arise in relation to information which is exempt by virtue of subsection (1) if to comply would, or would be likely to, result in the harm described.

 
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Prepared: 7 April 2000