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

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Clause 37: Environmental information

137.     This clause exempts environmental information, which is to be made available under the regulations made under clause 73 of the Bill.

138.     Subsection (1) provides that such information is exempt if the public authority is obliged to release the information requested in accordance with the regulations or would be so obliged but for an exemption under the regulations.

139.     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).

140.     Subsection (3) makes it clear that the inclusion of a specific exemption for environmental information available under the regulations does not limit the width of the general exemption contained in clause 19(1) (information available by other means).

Clause 38: Personal information

141.     Subsection (1) exempts, as a class, personal information relating to the applicant for the information. The right to know whether this information is held, and if so to have access to it, is covered instead by the provisions of the Data Protection Act 1998 (as amended by Part VII of the Bill).

142.     Where the information is personal information relating to a third party (that is, someone other than the applicant), it is exempt under subsection (2) if its disclosure would contravene the Data Protection Act 1998 or if the person to whom it relates would not have a right to know about it or a right of access to it under that Act (because of its exemption provisions). Personal information to which the relevant provisions of that Act do not apply is treated for these purposes as if they did. The 1998 Act prohibits the disclosure of personal information where, for example, it would be unfair, or incompatible with the purpose for which it was obtained, or where the individual who was the subject of the information had properly served notice that disclosure would cause unwarranted substantial damage or distress.

Clause 39: Information provided in confidence

143.     Clause 39 exempts, as a class, information obtained from any other person if its disclosure would constitute a breach of confidence actionable by that or any other person. A duty of confidence may be created by contract, or may arise from the circumstances. The common law of confidence itself provides that in certain circumstances a duty of confidence does not arise having regard to the public interest.

144.     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, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Bill) constitute an actionable breach of confidence.

Clause 40: Legal professional privilege

145.     Clause 40 exempts, as a class, information to which legal professional privilege applies.

146.     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 involve the disclosure of any information in respect of which such a claim could be maintained in legal proceedings.

Clause 41: Commercial interests

147.     Subsection (1) exempts information if it constitutes a trade secret.

148.     Subsection (2) exempts information the disclosure of which would, or would be likely to, prejudice the commercial interests of any person - including those of the public authority holding the information.

149.     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, or to the extent that, compliance would, or would be likely to, prejudice commercial interests.

Clause 42: Prohibitions on disclosure

150.     Clause 42 exempts all information where disclosure:

  • is prohibited by or under any enactment;

  • is incompatible with any European Community obligation; or

  • would constitute or be punishable as a contempt of court.

(Clause 74, enabling statutory prohibitions to be modified by order, is intended to complement this provision.)

151.     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) where compliance would itself (apart from the Bill) be prohibited by or under any enactment or is incompatible with any European Community obligation or would constitute or be punishable as a contempt of court.

Clause 43: Power to confer additional exemptions by order

152.     Subsection (1) enables the Secretary of State by order to create an additional exemption relating to information whose disclosure would have particular effects adverse to the public interest specified in the order. Subsection (2) enables him by order to exempt existing information if the public interest in exempting it outweighs the public interest in allowing access to it. Any order under this clause is subject to affirmative procedure (clause 80(2)).

153.     An order made under subsection (1) or (2) may be expressed to have effect in relation to requests made under clause 1 before the date of the coming into force of the order, but which the authority has not yet complied with. Where such provision is made an authority which has not complied with a request relating to information to which the order applies will not be taken to have failed to comply with the request. Before making an order under this clause, the Secretary of State is required to consult the Commissioner.

154.     Subsection (3)(a) provides that an order made under this section may make provision to exclude the duty to confirm or deny in relation to the information which is made exempt information by virtue of that order and may modify clauses 62 and 63 in order to make provision for the application of the exemption to historical records (as defined in clause 61).

155. Subsection (6) provides that before laying a draft order before Parliament the Secretary of State is obliged to consult the Commissioner and to publish any written representations he may receive from the Commissioner except where to do so would in itself disclose exempt information.

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

Clause 44: Issue of code of practice by Secretary of State

156.     This requires the Secretary of State to issue, and from time to time revise, a code of practice setting out practices which he considers public authorities should follow in discharge of their duties in relation to Part I of the Bill (access to information). It specifies particular matters which must be included in the code such as the assistance that should be given to applicants and procedures for dealing with complaints. It also allows the code to make different provision for different authorities. Subsection (4) requires the Secretary of State to consult the Commissioner before making or revising a code; and subsection (5) provides for it to be laid before Parliament.

157.     The matters to be included in the code are administrative ones that are an important part of good practice. They form an important part of the overall scheme for dealing with requests for information. For example, the code will include provision relating to the provision by authorities of arrangements for dealing with complaints from applicants. It is envisaged that an effective complaints system will enable the more straightforward complaints to be dealt with by the authorities themselves and help ensure the best use of the resources of the Commissioner who would be able to concentrate on more complex or difficult cases.

Clause 45: Issue of code of practice by Lord Chancellor

158.     This requires the Lord Chancellor to issue a code of practice setting out practices which he considers public authorities (and other authorities whose records are subject to the Public Records Act 1958) should follow in relation to the keeping, management and destruction of their records. In doing so, he is to have regard to the public interest in public access to such records. Different provision may be made in relation to different authorities. The Lord Chancellor must consult the Secretary of State and the Commissioner before making or revising the code, and it must be laid before Parliament. Corresponding provision for Northern Ireland is included.

159.     For records which are also public records for the purposes of the Public Records Act 1958, the code may also include guidance as to the transfer of records to the Public Record Office and their review before transfer. Corresponding provision for Northern Ireland is included.

160.     The requirement to have regard to the public interest in access to records reflects the intention that the code will establish standards of good practice in relation to record-keeping. Good practice would increase the efficiency with which information can be located and retrieved by authorities in response to requests for information, and therefore increase the amount of information which will be available under Part I of the Bill consistent with the imposition of cost limits.

Clause 46: General functions of Commissioner

161.     This clause places a duty on the Commissioner to promote good practice by public authorities and promote the observance of the requirements of the Bill and the Secretary of State's and Lord Chancellor's codes of practice. The duty to promote good practice includes, but goes wider than, the enforcement of the right of access under the Bill; it enables the Commissioner to promote access to information held by public authorities in general. It could include the issue of advice on such matters as how to handle requests for information and the management of recorded information.

162.     Subsection (2) places a duty on the Commissioner in relation to the dissemination to the public of information in relation to the operation of the Bill, good practice, and other matters within the scope of his functions under the Bill. He can also give advice to any person on any of these matters.

163.     Subsection (3) enables the Commissioner to assess whether a public authority is following good practice, but only with the consent of the public authority.

164.     Subsection (4) enables the Commissioner to charge for services provided under this clause, subject to the consent of the Secretary of State. This allows him to charge for matters such as information, literature, or speaking engagements, but not, for example, for his statutory duties to enforce Part I of the Bill.

165.     Subsection (5) places a duty on the Commissioner from time to time as he considers appropriate to consult the Keeper of Public Records or, in Northern Ireland, the Deputy Keeper of the Records of Northern Ireland about the promotion of observance of the Lord Chancellor's code of practice in respect of public records.

Clause 47: Recommendations as to good practice

166.     This clause enables the Commissioner to take action where an authority's practices do not conform to the Secretary of State's or the Lord Chancellor's code of practice. He may issue a practice recommendation specifying the steps the authority should take to conform, but must first consult the Keeper of Public Records, when the practice recommendation relates to a failure to conform with the Lord Chancellor's code of practice and is issued in respect of records which are public records for the purposes of the Public Records Act 1958, or the Deputy Keeper of the Records of Northern Ireland for public records for the purposes of the Public Records Act (Northern Ireland) 1923.

Clause 48: Reports to be laid before Parliament

167.     This clause requires the Commissioner to lay before Parliament an annual report on the exercise of his functions under this Bill, and enables him to lay before Parliament such other reports as he considers fit.

Part IV: Enforcement

Clause 49: Application for decision by Commissioner

168.     This clause permits any person to complain to the Commissioner about an authority's compliance with the requirements of the Bill in respect of a request for information by that person.

169.     The Commissioner is required to make a decision on the authority's compliance unless:

  • the complaint has not exhausted the authority's own complaints system;

  • the complainant has delayed too long before complaining;

  • the complaint is vexatious or frivolous; or

  • the complaint is withdrawn or abandoned.

170.     Subsection (3) requires the Commissioner either to notify the complainant that he has not made a decision and his grounds for not doing so, or to serve notice of his decision on both the complainant and public authority.

171.     Subsection (4) states that where the decision is that a public authority has failed in its duty to confirm or deny whether it holds information or its duty to communicate information, or has otherwise failed to comply with the Bill as it relates to the means by which information may be communicated, public interest disclosures, or refusal of requests, a decision notice must specify steps the public authority must take to comply with the Bill and the time period for doing so. (In respect of a failure to comply with any requirement of Part I of the Bill, the Commissioner would have discretion to issue an enforcement notice under clause 51 whether or not any application had been made by a complainant.)

172.     Subsection (5) states that a decision notice must contain information about the right of appeal to the Tribunal against that decision.

173.     Subsection (6) provides that the time specified in a decision notice for complying with any steps required should not be shorter than the time available for an appeal to the Tribunal to be lodged. It also provides that an appeal shall be suspensory in effect as regards the matters affected by the appeal, and the steps specified in the decision notice would not have to be taken pending the outcome of the appeal.

174.     Subsection (7) provides that subsections (5) and (6) do not apply in relation to a decision notice which relates to a failure to comply with section 13. There is no provision for appeal against such notices.

175.     Subsection (8) provides that the decision notice provisions relating to disclosures under clause 13 have effect subject to the 'accountable person' override provisions set out in clause 52 (exception from duty to comply with decision notice or enforcement notice).

Clause 50: Information notices

176.     This clause enables the Commissioner to obtain from a public authority, by issuing an information notice, information (including unrecorded information) he requires to deal with an application under clause 49 or to reach a determination on whether an authority has complied or is complying with Part I of the Bill or with the Secretary of State's or Lord Chancellor's code of practice. He can specify the time for the authority to comply with the request and the form in which the information should be provided. This corresponds to the powers of the Commissioner under section 43 of the Data Protection Act 1998.

177.     Subsections (2) and (3) require the Commissioner to specify in the information notice the basis for asking for the information and details of the rights of appeal against the notice.

178.     Subsections (5) and (6) state that an authority is not required to supply the Commissioner with certain information relating to communications between a legal adviser and client (or a person representing a client) about the client's compliance with the Bill or any proceedings arising from it.

179.     Subsection (7) allows the Commissioner to cancel an information notice.

Clause 51: Enforcement notices

180.     This clause enables the Commissioner to issue an enforcement notice if he is satisfied that a public authority has failed to comply with any of the requirements of Part I of the Bill. The notice would require the authority to take, within a specified time, such steps as may be specified for complying with the requirements of Part I of the Bill. The clause contains provisions relating to appeals (comparable to those for decision notices and information notices). There is no provision for appeal against enforcement notices which relate to failure to comply with section 13 (comparable to the provision in clause 50).

181.     Provisions in clause 51 correspond to the powers of the Commissioner under section 40 of the Data Protection Act 1998. Experience of enforcing data protection legislation suggests that the powers may be rarely needed and used only when informal procedures have failed.

Clause 52: Exception from duty to comply with decision notice or enforcement notice

182.     This clause provides that a public authority does not have to comply with a decision notice or an enforcement notice issued by the Commissioner relating to a failure to comply with clause 13 if the 'accountable person' for that authority certifies, within 20 working days of the notice being given to the public authority, that he has, on reasonable grounds, formed the opinion that the authority did not fail to comply with clause 13 in relation to the information request in question.

183.     Subsection (2) provides that where the certificate relates to a decision notice the accountable person must also inform the applicant (who was the complainant for the purposes of clause 49) of his reasons for the decision, at the same time as giving the certificate to the Commissioner, or as soon after that time as is reasonably practicable.

184.     Subsection (3) qualifies the previous subsection in that the accountable person is not obliged to provide information to the applicant, if, or to the extent that, it would involve the disclosure of exempt information.

185.     Subsection (4) sets out who the accountable person is to be, in respect of certain kinds of public authority. It also provides (at (h), (j) and (k)), a power to specify by order, who the accountable person is to be for other authorities.

186.     Subsection (6) gives the Secretary of State a further order making power to provide deputies for accountable persons in certain limited circumstances.

Clause 53: Failure to comply with notice

187.     This clause provides sanctions for an authority's failure to comply with a decision notice, information notice, or enforcement notice. Failure, in respect of information notices, includes knowingly or recklessly making false statements. The Commissioner may certify failure to the court. The court may inquire into the matter and, after hearing witnesses or any statement on behalf of the public authority, deal with the authority as if it had committed a contempt of court. In this clause, the court means the High Court in England and Wales or Northern Ireland or the Court of Session in Scotland.

Clause 54: Powers of entry and inspection

188.     This clause introduces Schedule 3 which makes provision for the Commissioner's powers of entry and inspection. The powers are similar to those available to the Commissioner under the Data Protection Act 1998.

Clause 55: No action against public authority

189.     This clause ensures that the Bill does not create any right to an injunction or to sue for damages for breach of statutory duty. It does not affect the Commissioner's powers to issue enforcement notices. The clause does not oust the courts' judicial review jurisdiction.

Part V: Appeals

Clause 56: Appeal against notices served under Part IV

190.     This clause enables a complainant or a public authority to appeal to the Tribunal against a decision notice and a public authority to appeal to the Tribunal against an information notice or enforcement notice served on it. It does not confer a right of appeal in relation to a decision notice or enforcement notice which relates to a failure to comply with clause 13.

Clause 57: Determination of appeals

191.     This clause provides that appeals are to be allowed on only two grounds:

  • that the notice against which the appeal was brought was not in accordance with the law; or

  • where the notice involved the exercise of discretion by the Commissioner, that he should have acted differently.

192.     The Tribunal may review any facts on which the notice was based and if it allows the appeal it may substitute the notice with another one.

Clause 58: Appeals from the decision of Tribunal

193.     This clause enables any party to an appeal to appeal from a decision of the Tribunal to the courts on a point of law.

Clause 59: Appeals against national security certificate

194.     Clause 59 provides that the Commissioner or any person whose request for information is affected by the issue of a certificate under clauses 21 or 22 may appeal to the Tribunal against the certificate.

195.     The Commissioner has no jurisdiction in respect of information held by a public authority which has been directly or indirectly supplied to it by the security agencies, or which must be withheld for the purposes of safeguarding national security. Clauses 21(2) and 22(3) provide that any question of whether an exemption on these grounds applies falls to be resolved by reference to a decision of a Minister of the Crown who may issue a certificate to the effect that the information is exempt information.

196.     Subsections (2) and (3) provide that the Tribunal (which, under Schedule 6 to the Data Protection Act 1998 as amended by Schedule 4 to the Bill, will be specially constituted for these appeals) may allow the appeal and quash the certificate if it finds, in the case of clause 21(2) appeals, that the information was not exempt information or, in the case of clause 22(3) appeals that, applying the principles of judicial review, the Minister did not act reasonably in issuing the certificate.

197.     Subsections (4) and (5) relate to certificates issued by a public authority which identify information by means of a general description as allowed under clause 22(3). Subsection (4) provides that, if a public authority claims that particular information is covered by the certificate, any other party to the proceedings may appeal to the Tribunal on the grounds that the certificate does not apply to that information. The Tribunal may determine that the certificate does not apply. If it does not so determine, the certificate applies.

Clause 60: Appeal proceedings

198.     This clause introduces Schedule 4 which amends Schedule 6 to the Data Protection Act 1998 relating to appeal proceedings. The effect of the amendments is that appeals under this Part are dealt with in accordance with the procedures in the amended Schedule 6 to the Data Protection Act 1998.

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

Clause 61: Interpretation of Part VI

199.     This clause defines the expression "historical record" for the purpose of this Part of the Bill. A historical record is a record which is thirty years old, counting from the calendar year following that in which it was created. Where records are kept in a file, the thirty years (and the other periods of years mentioned in clause 62) are reckoned from the calendar year following that in which the most recent was created.

Clause 62: Removal of exemptions: historical records generally

200.     The effect of this clause is to disapply some of the exemptions in Part II of the Bill in the case of information contained in a historical record, and therefore to extend the scope of the right of access in clause 1 in these cases. The exemptions which are disapplied are those relating to:

  • relations within the United Kingdom (clause 26);

  • criminal investigations and proceedings (clause 28(1));

  • court records, etc (clause 30);

  • audit functions (clause 31);

  • formulation of government policy etc (clause 33);

  • prejudice to effective conduct of public affairs (clause 34);

  • communications with Her Majesty etc (clause 35(1)(a));

  • legal professional privilege (clause 40); and

  • commercial interests (clause 41).

201.     In addition, the exemption relating to honours (clause 35(1)(b)) is disapplied in respect of information contained in a record which is 75 years old, and the law enforcement exemption (clause 29) is disapplied in respect of information contained in a record which is one hundred years old.

Clause 63: Removal of exemptions: historical records in public record offices

202.     This clause makes further disapplication of exemptions in Part II of the Bill in the case of information contained in a historical record, but only where the record is held by the Public Record Office. (The Public Record Office is a government department and so, by virtue of paragraph 1 of Schedule 1, a public authority for the purposes of the Bill.) Corresponding provision for Northern Ireland is included.

203.     Under subsection (1), the exemption for information accessible to the public by other means does not apply in these cases. This is despite the fact that the Keeper of Public Records will continue to be under an obligation under section 5(3) of the Public Records Act 1958 to arrange reasonable facilities for public inspection and copies as well as complying with the duties under the Bill. Nor does the exemption for information intended for future publication apply.

204.     Subsection (2) provides that, where records are in the Public Record Office, although the exemption from clause 1 relating to information supplied by, or relating to the work of, bodies dealing with national security matters will continue to apply, the public interest disclosure provisions of clause 13 will come into effect in respect of this information.

 
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Prepared: 7 April 2000