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I give the noble and learned Lord a typical illustration. I asked a government agency for a copy of its 1998 annual report. I was told that I could obtain it from the House of Lords Library. I said, "Yes, but I would like it in electronic form". They replied, "We have it in electronic form, but you cannot have it in electronic form". That is not the state of affairs which I should like to prevail under the Freedom of Information Bill when it is enacted. We have a Government who are committed--so they say--to making us an Internet society by 2005. A necessary
If, under Clause 10, I shall have the right--should I ask for information under the terms of the Bill--to obtain that information in electronic format, as that is reasonably and easily available and easy for the public authority to provide, I do not see why I should be prevented under Clause 19 from obtaining that information in that format and why we should be, as it were, chucked out of the information society.
I have made many such requests. At the moment they are generally refused. I am told by the Department for Education that I can apply in writing to every school for the information I require and that although the department holds it centrally in electronic form it will not release it. I believe that that matter comes under the provisions of Clause 19 as I shall be unable to obtain information from a public authority in a form which is easily available--the exemption will prevent that--but which it is reluctant to provide for one reason or another. We shall discuss the substance of that matter later. However, it seems to me that a public interest test is the right way to approach making the exemption under Clause 19 more human and usable rather than just reasonable. I believe that would bring it more into the whole ambit, purpose and style of the Bill than is currently envisaged. I beg to move.
Lord Falconer of Thoroton: I shall speak to the matter briefly as later we shall discuss more detailed provisions that relate to electronic access. Clause 19 provides that if the information is reasonably accessible, the freedom of information regime is not instituted. The question of whether information is reasonably accessible through other means is to be decided in the first instance by the relevant public authority. If the applicant does not accept its conclusion, the information commissioner can decide the matter. No Minister will override that decision. It seems sensible that where the issue does not concern whether someone should gain access to information, but rather whether it is reasonably accessible through other means, the matter should be decided under the provisions of one part of the Bill. There should not be an overlapping set of provisions.
I do not know whether other provisions might apply in the case that the noble Lord mentioned. I believe that in that case the information commissioner would have to decide whether the fact that the noble Lord was denied the information he requested meant that it was not reasonably accessible. The Bill establishes an independent person; namely, the information commissioner, to decide such matters. Under those circumstances I suggest that the noble Lord withdraws the amendment.
Lord Falconer of Thoroton: The policy conclusion reached by the Government on this matter was that the security services should not be hampered by the Freedom of Information Bill. That is why the Bill is drafted in the way that it is.
Lord Lester of Herne Hill: I perfectly understand the Government's policy decision on this matter. However, I point out that there could be extreme cases where, if the measure were rigid and absolutist in its application, the courts might have to deal with the matter. Even in the security area one can imagine a whistle-blowing situation in which, if the matter has been completely immunised under the terms of the clause from freedom of information access, it would have to be dealt with at common law due to an abuse of power. I simply mention that because one should not assume that just because something has absolute exemption under the Bill it would have absolute exemption either as a matter of common law or even under the Human Rights Act.
Lord Falconer of Thoroton: The Bill deals with the right of the citizen to extract information from the government machine. Whistle-blowing activities are not dealt with at all under the Bill; I accept that that is a matter for the common law.
Lord Mackay of Ardbrecknish: Does that mean, for example, that the cost of repair of the security services building damaged in a recent terrorist attack would be considered to be information which should not be divulged?
Lord McNally: Before the Minister replies to that point, I hope that he will consider my next point. Does this mean that where the security services are engaged in non-secret activity such as the construction of a new building and that building runs over budget they can still hide behind their secrecy? Perhaps the noble and learned Lord should have asked the security services to look after the Dome.
Lord Falconer of Thoroton: The more often the Dome is discussed the better as that generates more publicity for it. The Government have taken a policy decision to exclude completely the activities of the security services from the terms of the Bill. The kind of matters to which the noble Lords, Lord Mackay of Ardbrecknish and Lord McNally, referred are subject
Lord Lester of Herne Hill: Perhaps I may explain that I am not an enthusiast for the amendment. We are in a judicial area, including all tribunals, arbitrators and so on. The right body or person to decide on how the public interest should be weighed in these cases should be the judge, the chair of the tribunal or the arbitrators. That applies especially in the case of public interest immunity. We shall start crossing wires and producing a very complicated situation if, using a balancing and harm test, the Freedom of Information Bill begins to intrude into those other areas. The courts are pretty astute to ensure that restrictions in those areas are not unnecessarily imposed and that the public has access to information, where necessary, where it will not infringe, for example, fair trial. For that reason I should not be in favour of the amendment.
Lord Falconer of Thoroton: The reasoning given by the noble Lord, Lord Lester of Herne Hill, reflects the reasoning of the Government. Where the matter is in the hands of a court--and in Clause 30 a court,
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