The Campaign for Freedom of Information has produced a new briefing on the failings in the FOI Bill, which will shortly have its Report Stage debate in the House of Commons.

The Campaign says the Bill is biased against disclosure to a remarkable degree and that some of its failings “are so extraordinary, that no-one would have believedthat they could be found in an FOI bill at all”.

The briefing says:

• Information about dangers to public safety will be exempt, includinginformation about the falsification of nuclear safety test results byBNFL, railway crashes like the Paddington accident, abattoirs which fail to comply with BSE regulations, restaurants responsible for food poisoning outbreaks, car dealers selling dangerous cars and similar matters.
• Safety authorities could even refuse to confirm or deny whether they hold such information.
• The facts on which government policies are based will be exempt. Ministerswill not have to reveal the research, statistics, cost data or opinion polls on which decisions are based or scientific advice on issues such as the cause of BSE. Ministers will not even have to say whether such information exists.
• Ministers and authorities which break the law or act negligently or complacently will themselves decide whether it is in the public interest to reveal this. The independent Information Commissioner will only be able to recommend, not require, disclosure on public interest grounds.
• British Nuclear Fuels will decide if it is in the public interest to revealinformation about safety problems at Sellafield.
• Dame Shirley Porter would have decided if it was in the public interest toreveal information about Westminster Council’s housing sales policy.
• Ministers would decide if it is in the public interest to revealinformation about the safety risks of part-privatising the air traffic control systemor the London underground.
• Obscure quangos like the British Potato Council and the Government Hospitality Fund Advisory Committee for the Purchase of Wine will also be able to overrule the Information Commissioner on questions of public interest. Ministers say that to leave these decisions to the Information Commissioner would be “profoundly undemocratic”.
• The Information Commissioner will be subject to a ‘gagging clause’ and willcommit a criminal offence by revealing information which a member of the public would be entitled to obtain under the Bill itself – a farcical situation.
• No information about police investigations will have to be disclosed, even if it could not affect law enforcement or legal proceedings. After an attackhad been committed, the police will not even have to say whether any witness had come forward, whether the witness had been interviewed or had described the attacker. The inadequacies of the investigation into Stephen Lawrence’s murder could be concealed under this exemption.
• The fact that a company had sold dangerous products, or behaved in someother disreputable manner, could be suppressed if disclosure would leadcustomers to buy alternative products or shareholders to sell theirshares.
• The number of civil servants employed in a minister’s private office wouldbe exempt.
• The bill’s privacy exemption is so strict that authorities may decide thateven the names of civil servants, or local government councillors, actingin an official capacity should be blanked out of documents before they aredisclosed.
• Authorities will be able to withhold information which in their “opinion”would “prejudice the effective conduct of public affairs” – anextraordinarily vague test.
• Because their “opinions” are given legal weight, their decisions will be immune from challenge – unless they are irrational. Authorities will be able to destroy records which someone has asked for, provided they had planned to do so before the request was made.
• Authorities will be able to refuse requests without telling applicants oftheir right to complain to the Information Commissioner.
• Ministers will be able to create new exemptions by Parliamentary order intime to block existing requests.
• They will also be able to remove any information from the scope of the bill by Parliamentary order.
• Ministers refuse to take similar powers to improve the bill byParliamentary order (e.g. by restricting the scope of an exemption). They say they needto be able to restrict the right of access to have “flexibility to respond tochanges in circumstances”.
• But an equivalent power to strengthen access would “allow the delicate balances in the Act…to be upset by secondary legislation” and “cause considerable concern to many authorities”.
• Authorities will be able to charge higher fees for information which theyrelease in ‘the public interest’ than for information released on other grounds under the bill. This is unique to the UK bill. Other FOI laws reduce fees where disclosure is in the public interest.
• The bill would remove some existing rights under the Tories’ opengovernment code, introduced in 1994, which applies to central government bodies.
• The bill may not come fully into force for 5 years.

Before the election, Tony Blair promised an FOI bill that would “signal anew relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country and seeselection to serve the public as being given on trust.”

But the Campaign’s director, Maurice Frankel, said: “No-one would havebelieved Mr Blair was referring to a bill as feeble as this – or thatprovisions like these could form part of an FOI bill at all.

“There is no legal right to information about crucial areas of government. If ministers or authorities take incompetent decisions, or expose the public to danger, they will be able to cover up their own failures.

“Two changes above all are needed. First, the blanket exemptions should be removed: authorities should not be able to withhold information unless they can show disclosure would be harmful. Second, the Information Commissioner should have the final sayon when disclosure is in the public interest – not ministers and authorities who may have something to hide.”

The government has indicated it will make some amendments to the bill at its report stage in the House of Commons, later this month. The Campaign says these will need to be far reaching if the bill is to meet the promises that Labour has repeatedly made over the last 25 years.

Note: The Information Commissioner’s powers under the FOI Bill depend on the type of information involved.

In some areas the bill only allows information to be withheld if disclosure would ‘prejudice’ particular interests such as defence, the economy or commercial interests. If an authority fails to demonstrate ‘prejudice’ the Commissioner can order disclosure.

In other areas, like policy formulation and safety investigations, blanket exemptions apply to all information, even if disclosure would do no harm. Authorities will be free to withhold all such information – the Commissioner can do nothing about it

Authorities also have to consider releasing exempt information in the ‘public interest’. But the Commissioner can only recommend, not require,disclosure on these grounds. Authorities will be able to overrule theCommissioner if disclosure would be embarrassing to them.

For latest updates on freedom of information and localgovernment and reporting the courts, check www.ukeditors.com

Society executive director Bob Satchwell urges journalists: “Please keep sending contributions to the debate and evidence that we can use, contact MPs using briefings on the website, and don’t forget, we need to make the public – your readers, listeners and viewers – aware of the crucial issues.”

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