63.The draft bill should provide
a framework for transforming the "culture of secrecy"
in British government. It should be amended in the ways proposed
in this report.
64.If the draft Bill is to conform
to true Freedom of Information principles, the most important
single amendment needed is to give the Information Commissioner
a public interest override power in clause 44 to overrule a ministerial
decision under clause 14, and to order disclosure. At the very
least there should be a power for the Commissioner to publish
an opinion that a discretionary refusal to disclose was wrong
on the merits, rather than simply to issue a decision notice about
the procedure followed (paragraph 21).
65.Exemptions under the draft
Bill should conform with the current approach to Public Interest
Immunity exemptions, that is there should be scrutiny of the reasons
claimed for the exemption and not mere verification of the class
into which they fall (paragraph 23).
66.Save for a limited class exemption
for current investigations, all exemptions under clause 25 should
be subjected to the test whether they are likely substantially
to prejudice the integrity of the judicial process or right to
a fair trial (paragraph 24).
67.It should be made clear that
the primary public interest in clause 25(2) is the right of individuals
to fair investigative proceedings or personal privacy (paragraph
68.We are content that the draft
Bill should use the term "prejudice" rather than "harm"
but believe that "prejudice" alone is not enough to
justify exempting information from public access. The draft Bill
should be amended wherever "prejudice" is the test for
exemption, to require that disclosure would or would be likely
substantially to prejudice a protected public interest. Clauses
21 (defence), 22 (international relations), 23 (relations within
the United Kingdom), 24 (the economy), 26 (law enforcement), and
28(3) (decision-making) should be amended accordingly (paragraph
69.Clause 36 (power to create
new and retrospective exemptions) should be left out (paragraph
70.Background factual information
should be distinct and separable from policy advice and taken
out of the class exemption for policy advice. Non-policy development
information should be exempt only if disclosure "would substantially
or would be likely substantially to prejudice" the relevant
interests. The test should be an objective one, reviewable by
the Information Commissioner and not by the "qualified person"
(paragraphs 34 & 35).
71.The exemption in clause 37
(effect of disclosure) should be confined to information which
would substantially prejudice national security or defence if
it were to be combined with information reasonably likely to become
accessible to the public (paragraph 37).
72.The exemption in clause 17
for information intended for future publication "at some
future date (whether determined or not)" should be limited
to information to be published on a date determined, or to be
published within three months of the date of the application for
access to the information (paragraph 38).
73.The exemption in clause 18
(security matters) should be replaced by a provision that such
information is exempt only if its disclosure would substantially
or would be likely substantially to prejudice national security
or defence (paragraph 39).
74.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)" (paragraph 43).
75.As with other exemptions, the
test in clause 34(2) (exemption if disclosure would prejudice
commercial interests) should be whether disclosure would substantially
or would be likely substantially to prejudice commercial interests
76.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 (paragraph 47).
77.The privilege against self-incrimination
by a public authority (clause 44(7)) should be limited to situations
where the public authority is itself an individual (paragraph
78.A.Power under Part II 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
79.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 Information
Commissioner (paragraph 51).
80.Applicants should not be required
to give reasons for requesting information. Access is a right,
not a privilege with a "need to know" qualification
81.There should be a maximum period
of 20 working days (not 40 days) within which a public authority
must comply with its duty to provide information, but provision
should be made for appropriate extensions of time with the approval
of the Information Commissioner (paragraph 56).
82.The draft Bill does not need
a purpose clause but the Long Title should be amended by leaving
out the words "make provision about the disclosure of information"
and substituting "facilitate the disclosure of information".
This would clarify the draft Bill's purpose of providing a framework
for transforming the "culture of secrecy" in British
government (paragraph 57).
83.There should be effective training
for officials, with appropriate funding and staff resources to
effect a change of culture and to counter any possible backlog
in dealing with requests for access (paragraph 58).
84.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. The proposed code of practice on records management
must give clear and robust guidance on best practice, including
the handling of electronic records (paragraphs 59 & 60).
85.It should become the rule that
the pre-legislative scrutiny of any Bill which the government
intends to include in the legislative programme beginning in the
autumn should begin not later than the previous Easter. Joint
committees for pre-legislative scrutiny would be a better use
of Parliament's limited resources (paragraphs 63 & 64).