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Department of Law, University of Essex

<[email protected]>

© Copyright 2001 Tom Cornford

First published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

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The Freedom of Information Act 2000 was passed to fulfil the Government’s promise to create a genuine freedom of information regime. Between the publication of its White Paper on the subject and the drafting of the legislation, however, the Government’s enthusiasm for freedom of information cooled. The result is an Act that is profoundly ambiguous. In this note, I outline the background to the Act and attempt an assessment of its likely effectiveness. My conclusion is that it is extremely doubtful whether the Act will bring about the change in the culture of government that is its supposed purpose.

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Introduction

The Point and Meaning of Freedom of Information

The History of the Act

• Background
• The White Paper
• The Bill

The Act

• The Basic Duty and the Exemptions
• The Public Interest
• Procedural Duties
• Enforcement
• A Hypothetical Example

Conclusion

Bibliography

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The principle of freedom of information – that citizens are presumed to have a right to information held by public authorities – has come increasingly to be accepted in the developed world. Sweden, the United States, Finland, Norway, Denmark, France, the Netherlands, Austria, Spain, Portugal, Belgium, Ireland, Canada, Australia and New Zealand all have statutes or constitutional provisions which create a freedom of information regime. Even the EU has been taking faltering steps in this direction.⁽¹⁾ By contrast, the UK has until now possessed no such regime. With the Freedom of Information Act 2000, the Government purports to remedy this state of affairs. It is, however, open to doubt whether the new Act has the virtues claimed for it by the Government. In what follows, I describe the Act and its history and also attempt a critical assessment of its strengths and weaknesses. I shall refer to freedom of information as “FOI” and to the Freedom of Information Act 2000 variously as “the Act”, “the UK Act” and “the FOIA”, depending on context.

As a preliminary to assessing the Act, it will be useful to say something about what one should expect of a freedom of information regime. Freedom of information may be justified on grounds of principle or by reference to its beneficial consequences. The principled justification goes as follows. Public authorities act in the public interest. The information they collect in the course of carrying out their functions is kept, so to speak, in trust for the public. They have no legitimate interest in keeping it private. Their position is thus in contrast to that of private persons. Whereas private persons have a general interest in keeping information concerning their activities to themselves, it is only legitimate for public authorities to withhold information where to disclose it would be somehow injurious to the public interest.

The justification based on consequences points to the fact that freedom of information enables citizens to hold public authorities to account. Partiality, corruption and incompetence are less likely to occur where the decision-making process is exposed to public view and where they do occur, freedom of information assists the citizen in her efforts to gain redress. Freedom of information also has other benefits. In the words of a proposed (but unadopted) amendment to the Act, it promotes “informed public debate on public affairs, public participation in the making of decisions, and public understanding of the powers, duties and operation of public authorities".⁽²⁾

Whichever justification is preferred, the cardinal principle is that citizens are entitled to any piece of publicly held information provided that it is not contrary to the public interest for that particular piece of information to be disclosed. The balancing exercise which the application of this principle involves closely parallels the exercise undertaken by judges in deciding claims of public interest immunity (PII). As with the modern approach to PII, there is no place for class claims in a genuine freedom of information regime.⁽³⁾

There is, of course, room for disagreement as to how best to achieve freedom of information, but there are a number of features which are to be found in all genuine freedom of information regimes. The statute (or other legal instrument) creating the regime must contain a general presumption in favour of disclosure. There must be a general right of access to information held by public authorities which relates to its public functions. This right must be made subject to exemptions in order to protect specified public interests. These interests must however be narrowly drawn and disclosure refused only where it can be shown that disclosure of the particular piece of information withheld would cause harm to one or more of the interests. Many advocates of freedom of information would add that even where there is potential harm to a specified interest, disclosure should only be refused where the harm can be shown to outweigh any public interest in disclosure of the information in question. Lastly, there must be the possibility of appeal to an independent body or official against refusals by public authorities to disclose information. This body or official must have the power to re-determine applications de novo and to make binding decisions. Where the statute provides for disclosure in the public interest of otherwise exempt information, the body or official should have the power to decide where the public interest lies.

These are the essentials of a genuine freedom of information regime, but many other features might be necessary to make it operate effectively in practice. Such features might include: a duty to publish certain categories of information automatically; rules requiring disclosure of actual documents rather than summaries of the contents thereof, and of parts of those documents where the whole cannot be disclosed; rules requiring public authorities to make decisions on disclosure within some reasonable time limit; rules governing the fees which authorities can charge for providing information; and a duty on public authorities to furnish reasonable assistance to persons seeking information.

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Before the Freedom Of Information Act 2000, there was no freedom of information regime applying to the whole of the public sector. Part VA of the Local Government Act 1972 gave the public rights to information about meetings of local authorities and the Environmental Information Regulations 1992 gave a right of access to information about the environment. A number of statutes and statutory instruments also conferred upon citizens a right of access to records held about them.⁽⁴⁾ But the Conservative administrations of 1979-1997 steadfastly set their faces against a comprehensive and compulsory regime. What they did do, however, in 1994, was to introduce a voluntary code, the Code of Practice on Access to Government Information. The provisions of this Code are broadly similar to those that might be found in a freedom of information act although, as well as not being legally enforceable, the rights it creates are relatively limited.⁽⁵⁾ The Code is overseen by the Parliamentary Commissioner for Administration and applies to the bodies subject to his remit i.e. central government departments and their agencies and a wide range of regulatory and other non-departmental public bodies. Applicants for information who believe that a government department has failed to comply with the code may complain to the PCA by means of the same procedure as applies under the Parliamentary Commissioner Act 1967. As in relation to other complaints under the 1967 Act, the Commissioner may make a recommendation. One of the complaints often made by critics of the new Freedom of Information Act, as the bill made its way through Parliament, was that it did not go beyond the Code and, in certain respects, even represented a step backwards from it.

Freedom of information was one of the planks of new Labour’s election manifesto. In December 1997, the Government issued a White Paper, Your Right to Know, which proposed a model freedom of information regime. The promised act was to cover the entire public sector, privatised industries and private bodies carrying out statutory functions. It was to establish a basic right of access to be denied only where harm (in most cases “substantial harm”) could be shown to one of seven clearly defined interests. Even where harm could be shown, the promised act was to require disclosure where the harm in question was outweighed by the public interest in disclosure. The regime was to be overseen by an official, the Information Commissioner, with power to hear appeals against refusals to disclose information and to order disclosure where she found that disclosure would not cause harm to a specified interest or was in the public interest. There was to be no right of appeal against decisions of the Information Commissioner or provision for her decisions to be overridden by Government ministers. The proposed regime was also to include other features designed to facilitate easy access to information. Thus, there was to be an equitable structure of charges for information so as not to deter citizens from seeking information which public bodies could easily make available and public bodies were to be put under a duty to publish many categories of information as a matter of routine.

The White Paper was greeted with surprise and delight by supporters of freedom of information. However, things were not to go their way. Important members of the Cabinet were not happy with the proposal, most notably the Home Secretary, Jack Straw. After a well-publicised struggle, the minister responsible for freedom of information, David Clark, lost his cabinet position, and the matter was handed over to the Home Office.⁽⁶⁾ The result, published on 24 May 1999, was a draft bill (Cm 4355, 1999) as disappointing to proponents of FOI as the White Paper had been encouraging. The draft Bill contained no general presumption in favour of the disclosure of information. The exemptions from the right of access were far more widely drawn than those envisaged in the White Paper. Several categories of information were made subject to a blanket exemption: information falling within such categories was to be exempt not where it caused harm to a specified interest but simply by virtue of its inclusion in the category in question. Other categories were made subject to a harm test. However, the test was not, as in the White Paper, whether disclosure of the information would substantially harm a specified interest but whether disclosure “would, or would be likely to, prejudice” the interest in question. The Bill contained provision for disclosure of otherwise exempt information in the public interest. But authorities were not to be obliged to disclose information wherever it was in the public interest to do so. Rather, they were simply to be obliged to consider whether, in their discretion, to disclose exempt information having regard to the public interest in disclosure. The Bill’s provisions as to enforcement were also far weaker than those that had been proposed in the White Paper. The Bill provided for an Information Commissioner and the Commissioner was to have the power to hear appeals. But the Commissioner was specifically excluded from substituting her decision for that of an authority on the all-important question of whether disclosure should be made in the public interest. And the Secretary of State was to be given the power effectively to overrule decisions of the Commissioner by retrospectively designating particular pieces of information as exempt from disclosure. Furthermore, decisions of the Commissioner were to be appealable, first to an Information Tribunal, and thence, on points of law, to the High Court.

The restrictiveness of the Bill lay in the details as well as in the basic architecture of the system it proposed. Not only did it furnish public authorities with loopholes and scope for evasiveness in relation to matters important to any system of FOI such as charging and time limits: it also included a plethora of novel and specially devised grounds for withholding information. To enumerate these would require the rest of this note but one striking example is clause 44(7). This provided that authorities would be authorised to withhold from the Commissioner any information which would expose them to proceedings for a criminal offence.

The draft Bill was the subject of severe criticism, not least by a Select Committee of the House of Lords appointed to consider it (HL Paper 97) and by the Commons Select Committee on Public Administration (HC 570). As a consequence, when the Bill was presented to the Commons for its first reading on 18 November 1999, some of the most objectionable features had gone. This set a pattern whereby the Government attempted to drive the bill through by repeatedly making concessions without altering the fundamental character of the regime proposed. After significant amendment, the bill received Royal Assent on 30 November 2000. Whether the regime which the Act embodies resembles more closely the sham regime proposed in the draft Bill or the genuine one envisaged in the White Paper is the question which must now be answered.

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The Act applies to England, Wales and Northern Ireland. It does not apply to Scotland except with regard to those public authorities whose sole functions are reserved ones within the meaning of the Scotland Act 1998 (see the FOIA s.80). In relation to other Scottish public authorities, the Scottish Executive has proposed a Scottish Freedom of Information Act which, in some respects will be more progressive than the Act considered here.

Scottish authorities aside, the Act applies to the whole public sector and to companies wholly owned by public authorities. The technique adopted for determining its coverage is not, as in the case of the Human Rights Act, to give a general definition of the types of body to which it applies. Rather, the Act simply lists the bodies subject to its provisions in a Schedule (Schedule 1) and confers upon the Secretary of State the power to add to the Schedule (ss.4 and 5). In exercising the power, the Secretary of State may add bodies or offices created by legislation or by the executive (s.4) but also persons who appear to him to exercise functions of a public nature or to whom a public authority has contracted out any of its functions (s.5).

To some, at least, of those peers who voted for the Freedom of Information Bill in its final form, the most important provision of the Act is s. 2. This is the section that requires public authorities to disclose otherwise exempt information where it is in the public interest to do so. Added at a late stage of the Bill’s progress as a sop to critics, it is supposed to make up for some the Bill’s deficiencies. Whether it does so is a question much easier to answer once one has considered the basic duty which the Act imposes on authorities and the exemptions from that duty. Accordingly, it is to these that I now turn.

A number of foreign FOI statutes contain purpose clauses stating unequivocally that their purpose is to encourage the disclosure of information. Thus, for example, the Canadian Access to Information Act s.2(1):

The UK Freedom of Information Act contains no such unequivocal provision, in its long title or elsewhere.⁽⁷⁾ It begins instead by simply conferring a general right on citizens, on request, to be told whether a public authority holds information of a particular description and to have that information communicated to them.

The basic duty is then made subject to a series of exemptions contained in Part II of the Act. Part II remains, for the most part, unchanged from the draft Bill. The types or subjects of information covered are: information accessible to the applicant by other means (s.21); information intended for future publication (s.22); information supplied by, or relating to, bodies dealing with security matters (s.23); national security (s.24); defence (s.26); international relations (s.27); relations within the United Kingdom (s.28); the economy (s.29); investigations and proceedings conducted by public authorities (s.30); law enforcement (s.31); court records (s.32); audit functions (s.33); Parliamentary privilege (s.34); formulation of government policy (s.35); prejudice to effective conduct of public affairs (s.36); communications with Her Majesty and honours (s.37): health and safety (s.38); environmental information (s.39); personal information (s.40); information provided in confidence (s.41); legal professional privilege (s.42); commercial interests (s.43); and prohibitions on disclosure which is forbidden by other enactments, would be incompatible with Community obligations or constitute contempt of court (s.44). This list of categories of information is in itself unremarkable. Most of the categories of exempt information are ones which one would expect to find in any FOI regime. Others are present only because the exempt information is or will be obtainable by other means. This is true of the exemptions contained in ss. 21, 22, 39 and 40. The presence of the last of these, that covering personal information, simply reflects the fact that whether the information in question can be disclosed is already determined by the Data Protection Act 1998: the regime created by the FOIA dovetails with the regime created by the former Act. What is remarkable about Part II of the FOIA is the manner in which the exemptions are created. The exempting provisions fall into two broad categories. Some – ss. 21, 22, 23, 30, 35, 42, 43(1) (trade secrets) and 44 – impose blanket exemptions. Most of the others – ss. 26, 27, 28, 29, 31, 33, 36 and 43(2) (commercial interests of any person) - make information exempt where to disclose it “would, or would be likely to, prejudice” the specified interest. The formula used in creating these exemptions is an extremely elastic one. An authority could plausibly claim that a particular piece of information “would, or would be likely to prejudice” a specified interest even though the likely prejudice was extremely small. Together, the blanket exemptions and exemptions based on actual or potential prejudice give public authorities the power, in the first instance, to treat as exempt practically any kind of information one can possibly imagine.

Amongst the most striking exemptions are those created by ss. 35 and 36. Section 35 creates a blanket exemption covering information held by a government department which relates to the formulation or development of government policy. A point on which proponents of FOI agree is that a genuine FOI regime should compel government to disclose the factual information (often very great in quantity) which it relies upon in formulating policy. Critics of the bill fought to have the extraordinary breadth of the exemption in s.35 narrowed down so that it did not cover such factual information. They partially succeeded in their aim: subs. 2 of s.35 excludes from the exemption statistical information used to provide an informed background to decisions already taken. “Statistical information” is however a narrower category than “factual information”. It is also narrower than the “facts and analysis of facts” which the Government is already supposed to publish as a matter of course under the voluntary Code of Practice on Access to Government Information. S. 36 concerns “Prejudice to effective conduct of public affairs” and applies to information not exempt by virtue of s.35. It exempts information where “in the reasonable opinion of a qualified person” disclosure “would, or would be likely to prejudice” one of a number of specified interests including “the maintenance of the convention of the collective responsibility of Ministers of the Crown” and “the free and frank provision of advice”. “Prejudice to the effective conduct of public affairs” is not only the catch-all phrase used to describe the section but a residual category which permits information to be treated as exempt even if it does not prejudice any of the more particular interests. The section specifies who is to count as a qualified person in relation to each type of public authority. In relation to most authorities, the qualified person is a Minister of the Crown or a person authorised by a Minister of the Crown.

The potential difficulty which the exemptions create for those seeking information is increased by the fact that almost every exempting section exempts the authority from the duty to confirm or deny possession of information, as well as from the duty to disclose it. Those sections creating blanket exemptions simply exempt the authority from the duty to confirm or deny the possession of any information which falls into the exempt category. Those sections creating an exemption based on prejudice to a specified interest exempt the authority from the duty to confirm or deny where to do so would itself, or would be likely to, prejudice the interest in question.

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It is against this background of all-encompassing exemptions that s.2 must be considered. Section 2 provides that most of the exemptions contained in part II⁽⁸⁾ of the Act are only to have effect where “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information” (s.2(2)(b)). In a like manner, and in relation to the same categories of information, authorities are only to be exempt from the duty to confirm or deny whether they hold particular information where the public interest in maintaining the exclusion outweighs the public interest in disclosing whether the authority holds the information (s.2(1)(b)).

The Bill first presented to the House of Commons contained provisions on public interest disclosure significantly weaker than s.2. As noted above, these did no more than impose upon public authorities a duty to consider whether, in their discretion, to disclose exempt information, having regard to the public interest in disclosure. The power to order disclosure in the public interest was withheld from the Information Commissioner. This was one of the principal matters on which the Government gave ground in the course of the Bill’s passage through Parliament. By the time of the Committee stage in the Lords, the Government was already proposing to amend the bill so that public authorities would be obliged to disclose exempt information where it was in the public interest to do so and so that the Commissioner would be empowered to re-determine de novo the question of whether the public interest demanded disclosure in any given case.⁽⁹⁾ The form of the amendment as made at the Lords’ Committee stage was as follows:

The change from this to the amendment which became s.2 was the principal concession which persuaded the Liberal Democrat peers to vote for the Bill. If not for this last minute agreement, the Government would probably have had to make more radical changes or abandon the Bill altogether. The difference, perhaps not immediately apparent to the reader, between the Government’s previous amendment and s.2 is that the former requires the public interest in disclosure to outweigh the public interest in maintaining the exemption whereas the latter requires the public interest in maintaining the exemption to outweigh the public interest in disclosure. Some proponents of FOI took the view that the decision of the Liberal Democrat peers to let the bill through in exchange for so little was a spineless capitulation⁽¹⁰⁾. The Liberal Democrat peers themselves were at pains to explain that the change was highly significant⁽¹¹⁾. The new amendment, it was said, introduced a presumption in favour of disclosure into the bill: it reversed the “burden of proof” so that the obligation would be on public authorities to show that there was some pressing need for non-disclosure rather than on applicants to show that the public interest demanded disclosure.

Does s.2, as the Liberal Democrat peers seemed to suggest, make up for the absence of a purpose clause by creating a general presumption in favour of disclosure? In the context of the Act, the burden of creating a general presumption in favour of disclosure is a hard one to discharge. Throughout the passage of the Bill, the Government insisted that its purpose was not to create a presumption in favour of disclosure but to strike the right balance between the competing public interests in disclosing and withholding information. The rest of the Act, apart from s.2, reflects this assumption. Only at the last moment, when it agreed to s.2 in its final form, did the Government appear to be changing its tune⁽¹²⁾.

If one interprets the Act using traditional canons of statutory construction, one is bound to conclude that the presence of s.2 is not enough to alter the Act’s overall complexion. The Liberal Democrat peers’ reasons for thinking otherwise appear most clearly from the speech of Lord Lester at the Bill’s Report Stage in the Lords (HL Deb, 14 November 2000, col 135). There, his Lordship argued that s.2 would enable the Information Commissioner and the Courts to interpret the right to information contained in the Act in the same way in which the Courts interpret Convention rights under the Human Rights Act. On this view the Act creates a fundamental right to information only to be derogated from in a proportionate manner and in the service of some pressing social need. Ss. 1 and 2 read together do bear some resemblance to provisions of the ECHR such as Art. 10. S.1 sets out the general right of access. S.2 states that there are exemptions and limits the circumstances in which the exemptions are to apply. Here, however, the resemblance ends. Art 10(2) ECHR sets out a list of grounds on which derogations from the right may be made and requires that any derogation be “necessary in a democratic society”. It is clear that the right is primary and that derogations from it are only to be permitted in very restricted circumstances. By contrast, s.2 refers to two public interests, one in disclosure and one in non-disclosure. Here it is worth quoting again the exact words of the section.

This makes clear that in relation to any particular piece of information, there may be a public interest in disclosure. It does not, however, make clear that there is a public interest in the disclosure of information generally. Nor does it make clear that, in general terms, the public interest in disclosure is stronger than the public interest in non-disclosure. One might argue that this can be inferred from the title of the Act and from the fact that the first section confers a general right of access to information. However, in the context of the Act, these two features send out a very weak signal. They can, with equal plausibility, be seen as the title and first section of an Act whose purpose is to strike a balance between two interests closely matched in importance.

Nor does s.2, or anything in the Act as a whole, indicate what the public interest in disclosure might consist in. In this connection, what the White Paper had to say is instructive. It criticised the existing Code of Practice on the grounds that the notion of the public interest in disclosure was not defined, making it hard for authorities and applicants to understand or apply (paras 3.3. and 3.17). It promised to increase the clarity and certainty of decisions by defining what constituted the public interest. It also set out certain steps which an authority should go through in determining where the public interest lay. The first of these was to check that the preliminary decision on whether or not to disclose, resulting from application of the harm test, was not itself perverse, for example because refusal to disclose might harm the very interests which non-disclosure was supposed to protect. The other steps were: to ensure that the decision was consistent with other legislation requiring either the disclosure or withholding of information; and to ensure that the decision was in line with the overall purpose of the Act, namely to encourage government to be more open and accountable. This suggests, that far from fulfilling the function of a purpose clause, s.2 needs there to be a purpose clause to give the notion of the public interest content.⁽¹³⁾

A further defect of s.2 is that it refers to “the public interest in maintaining the exemption”. This might be taken to imply the existence of a public interest in maintaining any given exemption which went beyond avoiding harm to the interest which the particular exemption is designed to protect. The problem could easily have been avoided by referring solely to the public interest in disclosure and not to the public interest in maintaining an exemption.⁽¹⁴⁾ It hardly needs adding that reversing the order in which s.2 refers to the two public interests does nothing to improve it. ⁽¹⁵⁾

The best that can be said for it is that it puts a potential weapon in the hands of the officials charged with enforcing the Act. S.2 does not, on its face and unequivocally, create a presumption in favour of disclosure. But its very vagueness means that to treat it as creating or, at worst, permitting such a presumption would not be wrong in law.⁽¹⁶⁾ If the officials are strong willed and independent minded and if they believe in the principle of freedom of information, they will be able to use s.2 as the foundation for a policy aimed at increasing openness. But these are big ifs. There is a great difference between a regime which obliges its officials to create a culture of openness and one which merely creates the possibility of their doing so.

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There is thus a heavy onus on the officials charged with the Act’s enforcement. This naturally leads to the question of how strong their powers of enforcement are. Before addressing this question, however, another aspect of the Act must be examined. To be effective, an FOI regime must do more than simply create a right to information in principle: it must oblige public authorities to structure their operations so as to make transparency and disclosure the norm; and it must ensure that information is disclosed to citizens expeditiously and for an affordable fee. The best way to achieve these ends is by the imposition of clear statutory duties. Many foreign FOI regimes contain such duties. Anyone who reads, for example, the US Freedom of Information Act (5 USC 552), cannot but be impressed by the stringency of the procedural requirements it imposes. In the UK, with its entrenched culture of official secrecy, the presence in FOI legislation of clear duties with respect to such matters is all the more important. The Act’s approach is, however, the opposite of that which characterises the US legislation. It is shot through with discretion. Two techniques are to be found throughout the procedural provisions of the Act. One is to confer a power on the Secretary of State to make a code or regulations in relation to the matter in question. The other is to employ an open-textured standard, usually reasonableness.

The US Act requires each federal agency to publish inter alia descriptions of its structure and functions, its rules and policies, its administrative staff manuals and instructions to staff that affect members of the public, as well as descriptions of how and from whom to obtain any information sought. Other foreign FOI acts have similar provisions.⁽¹⁷⁾ The UK Act requires authorities to adopt publication schemes setting out the classes of information they intend to publish (s.19). These must be approved by the Information Commissioner. However, there does not appear to be anything in the Act requiring authorities to act in accordance with their publication schemes. The Act also requires the Secretary of State to issue a code of practice governing the manner in which public authorities are to deal with applications for information (s.45). Since the Secretary of State is one of the principal authorities who may have an interest in withholding information, this is a poor substitute for more concrete provisions in the Act itself. S.16(1) imposes a duty to provide assistance and advice to applicants “so far as it would be reasonable to expect the authority to do so”. But by subs. 2, any authority which complies with the Secretary of State’s code of practice will be taken to have discharged its duty under subs. 1.⁽¹⁸⁾

One of the grounds on which the Government’s White Paper criticised the existing Code of Practice was that it provided access to information but not to actual records or documents (White Paper para 2.8). As the White Paper pointed out, this offers scope for the “doctoring” of material and is contrary to most statutory regimes. The U.S. regime, for example, requires the disclosure of “records” and provides that where a whole record cannot be disclosed “[a]ny reasonably segregable portion....shall be provided ...after deletion of the portions which are exempt” (5 USC 552 (b)). The UK Act provides that where the applicant asks for information in a particular form “the public authority shall so far as reasonably practicable give effect to that preference” (s. 11(1)). Otherwise, “a public authority may comply with a request by communicating information by any means which are reasonable in the circumstances” (s.11(4)).

For an FOI regime to function effectively, authorities must be compelled to disclose information within a reasonably short time limit. The Act is in line with foreign regimes in requiring disclosure within 20 working days (s. 10(1)). However, s.10(4) enables the Secretary of State, by regulations, to extend the time limit to 60 days. Further, the time limit does not apply where the information falls within an exemption and can only be disclosed on public interest grounds (s.10(3)). Here, the authority is only obliged to come to a decision within “such time as is reasonable in the circumstances” (ss.10(3) and 17(3)).

Last but not least of the matters affecting manner of disclosure is the question of fees. In this respect, the US Act provides an especially stark contrast. It provides, inter alia, that: where documents are sought by an educational institution or representative of the news media, fees shall reflect only the cost of document duplication; that documents shall be furnished without charge or at a charge lower than the standard charge where disclosure is in the public interest because likely to contribute significantly to public understanding of the operations of government; that fees may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request; that no fee may be charged if the costs of routine collection and processing of the fee are likely to exceed or equal the amount of the fee; and that no agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the fee will exceed $250 (5 USC 552(a)(4)(A)). The UK Act provides that fees must be determined in accordance with regulations made by the Secretary of State (s. 9). It lays down no mandatory criteria which the regulations must satisfy, although it helpfully suggests that they “may...provide that no fee is to be payable in prescribed cases” (s. 9(4)). Where the authority has served a notice requiring payment of a fee for the information sought (a “fees notice”), it is not obliged to disclose the information unless the fee is paid within three months (s.9(2)). The days between service of the fees notice and payment of the fee are not to count in calculating the 20 day time limit for disclosure of information (s.10(2)). Under s.12, an authority can refuse to comply with a request for information where the cost of so doing would exceed the appropriate limit, this being a sum to be prescribed by the Secretary of State. Where an authority is empowered to withhold information on this ground, it may, nonetheless disclose it on payment of a fee to be determined in accordance with regulations made by the Secretary of State (s.13). The effect of ss. 12 and 13 together appears to be as follows. Where the cost of complying with a request exceeds the appropriate limit, the authority can either refuse the request, or, if it prefers, charge an extra fat fee for complying with it.

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The Information Commissioner is the official appointed to oversee the day-to-day running of the Act.⁽¹⁹⁾ She is also the first port of call for anyone in dispute with a public authority over its refusal to disclose information. Under Part IV of the Act, the Commissioner has the power to find that a public authority has failed to comply with any of its duties under Part I of the Act (i.e. the duties to deal with applications for information contained in ss. 1-16) and to order it to comply. This entails the power to decide de novo whether information should be disclosed, including, of course, whether it should be disclosed in the public interest. The Commissioner may exercise her powers of enforcement of her own motion (s.52) or upon application by a member of the public (s.50).

The White Paper proposed that the Information Commissioner should be the sole official charged with policing the FOI regime and that her decisions should be final. The arrangements under the Act are more complex. The first thing to note is that the Commissioner’s orders to disclose information in the public interest are subject to what the Home Secretary called, in introducing the amendment which brought it about, "executive override".⁽²⁰⁾ The amendment was introduced at the same time as the original amendments making disclosure in the public interest an enforceable duty. The Government thus clawed back part, at least, of what it had given. By s.53, an “accountable person” may issue a certificate that the decision of the authority subject to the order was correct and the effect of this is to nullify the Commissioner’s order⁽²¹⁾. The authorities whose decisions can be upheld in this way are government departments, the National Assembly for Wales and any public authority designated by the Secretary of State. In the amendment, as originally proposed, an “accountable person” with the power to override decisions of the Commissioner was to be designated in relation to each public authority. In the face of criticism, the Government confined the power: to Cabinet Ministers in relation to English public authorities; to the Assembly First Secretary in relation to the National Assembly for Wales or any Welsh public authority; and to the First Minister and deputy First Minister acting jointly in relation to a Northern Ireland department or any Northern Ireland public authority. The Bill’s critics pressed for the power of executive override to be exercisable only by decision of the Cabinet as a whole rather than by decision of individual ministers. The experience of the New Zealand FOI legislation has shown that confining the power in this way greatly reduces the number of occasions on which it is exercised. The Secretary of State refused to make this change but, characteristically, undertook to write into the ministerial code guidance to ensure that, with certain exceptions, the power would only be exercised in consultation with the Cabinet as a whole.⁽²²⁾ How much influence this is likely to have on the way that the ministerial veto is exercised is open to question.

Even where the ministerial veto is not exercised, the Information Commissioner does not have the last word. Under Part V, either the authority or the complainant may appeal to the Information Tribunal (s.57) which may make de novo determinations (s.58). Thence, there lies an appeal to the High Court on a point of law.

Earlier, I reached the conclusion that by relying on s.2, it would be possible for the officials charged with enforcement of the Act to treat it as creating a fundamental presumption in favour of disclosure. It is worth asking what effect the structure of enforcement will have on the likelihood of this presumption being arrived at or enforced. For the presumption to be established, two conditions will have to be fulfilled. Firstly, there will have to be a strong Commissioner, convinced that the correct way to interpret the Act is in accordance with the presumption. Secondly, the Courts will have to be convinced of the permissibility, or, ideally, the correctness of this interpretation.

However, even supposing the most favourable outcome in the Courts, this does not in the least guarantee that the FOI regime will be conducted in the way most conducive to openness. The reason is that the Courts are bound to defer to the decisions made by the officials charged with enforcement of the regime. Here is another fundamental difference between the right to information provided by the Freedom of Information Act and the rights provided in the ECHR and Human Rights Act. Whereas enforcement of the latter is placed directly in the hands of the judiciary, enforcement of the former is placed, in the first instance, in the hands of a hierarchy of special officials. Thus, just as the establishment of the presumption in favour of disclosure will depend upon there being a strong Commissioner, the effect of a finding by the Courts that the Act creates such a presumption will depend upon the character of the Commissioner and the Information Tribunal. Assume that the Courts find that the Act creates a presumption in favour of disclosure of the sort argued for by Lord Lester. This will seldom lead them to interfere in the way in which the the Commissioner or Tribunal strike the balance between the competing interests in disclosure and non-disclosure. The Courts will look to see that the presumption has been stated correctly; and they will ensure that the particular decision reached is not plainly incompatible with the presumption; but further than this they are not likely to go. Wherever the presumption has been correctly stated and the decision reached is not plainly incompatible with the presumption, the decision is likely to remain untouched. Assume now that there continues to be a strong Commissioner and that the Information Tribunal is also strong and favours disclosure. The two will insist on disclosure wherever possible and their decisions will, for the most part, be upheld by the Courts. Alternatively, assume that the strong Commissioner retires and is replaced by a weak or executive-minded one. Or that the Information Tribunal is pusillanimous and inclined to accept the Government’s arguments for non-disclosure. This might result in many decisions of the Commissioner or Tribunal upholding refusals by public authorities to disclose information. As long as the Commissioner or Tribunal have taken care to state the presumption in favour of disclosure correctly, however, most of these decisions will be effectively immune from challenge in the Courts.

The Courts’ reluctance to interfere may also extend to judicial review of a Cabinet Minister’s use of his veto. Again, let us suppose that the Courts accept the Lester interpretation of s.2 as requiring disclosure except where it is necessary to make an exception in order to fulfil some pressing social need. The Courts are still likely to defer to decisions of the Minister as being the highest in the hierarchy of officials to whom the Act entrusts enforcement of the FOI regime. Given that the Act entrusts decisions as to whether the public interest requires disclosure to Ministers and not to them, the Courts may well employ a traditional, pre-Human Rights Act style of review. This will mean that their chief tasks are to ensure, as with appeals from the Commissioner and Information Tribunal, that the presumption in favour of disclosure is properly stated and that no decision plainly incompatible with the presumption is made. The standard will be much closer to the deferential Wednesbury one than to the intensive standard used in human rights challenges.

So much for enforcement of the basic rules requiring disclosure. I turn now to consider enforcement of the procedural rules contained in the Act. I argued above that such rules are as important to an FOI regime as the rules establishing a right in principle to information. By the same token, the question of how effectively procedural rules will be enforced is as important as the question whether the regime’s officials will ensure the disclosure of information in particular cases.

The first point to make is that certain important rules of procedure are beyond the reach of the Commissioner. The most important of these are the rules governing the fixing of fees. In relation to other matters, the Commissioner does have a role. Typically she will be called upon to grant or withhold her approval or determine the reasonableness of some practice of an authority. Thus, she must grant or withhold her approval of authorities’ schemes of publication under s.19 and she may be asked to determine whether the length of time an authority is taking to decide whether to disclose information in the public interest is reasonable. In relation to some of these matters, the question of the effect of s.2 arises yet again. Viewed in the light of the Act’s overall purpose, should authorities reckon, in most cases, to make available or disclose a copy of the actual document sought? Is the Commissioner entitled to take a tough line in deciding the length of time it is reasonable for an authority to take in deciding whether to disclose information in the public interest? The public interest test in s.2 is expressed to apply only to the question whether information should be disclosed, not to questions like those just referred to. It is thus not at all obvious, in relation to these procedural matters, that the Act gives the Commissioner a warrant to exercise her powers on the assumption that the basic purpose of the Act is to encourage disclosure.

A last technical observation in relation to enforcement is that, as well as providing authorities with the procedural means to frustrate applicants, the Act puts various procedural obstacles in the way of the Commissioner. Foremost amongst these, of course, is the system of appeals against her decisions but there are others as well. The most notable relates to information notices. These are notices which the Commissioner may serve upon authorities requiring them to disclose to her the information she needs in order to make a decision (s.51). An authority may appeal against such a notice, first to the Information Tribunal (s.57) and then, on a point of law, to the High Court (s.59).

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Together, the provisions on disclosure and the system of enforcement could lead to situations of dizzying complexity. Suppose a journalist sought background factual information on the basis of which a government department had made a decision on some controversial area of policy: say foot and mouth disease, genetically modified crops, human embryology research or rail safety. Suppose also that the department was reluctant to disclose this information. S.35 imposes a blanket exemption for information which relates to the formulation of government policy. However, it excludes from the exemption “statistical information used to provide an informed background” (subs. (2)). Subs. (4) of s.35 also requires that in applying the public interest test to information exempt under that section, “regard shall be had to the particular public interest in the disclosure of factual information which has been used, or is intended to be used, to provide an informed background to decision-taking”. The department might decide that the public interest test came down against disclosure of the factual information sought as a whole; but under s.35, it would nonetheless be required to disclose the statistical information. At this point, s.36 would come into play. S.36 makes exempt information whose disclosure “in the reasonable opinion of a qualified person...would, or would be likely to, inhibit... the free and frank provision of advice, or...would otherwise prejudice, or would be likely to prejudice, the effective conduct of public affairs”. In relation to statistical information, this exemption applies but with the omission of the words “in the reasonable opinion of a qualified person”. The department would thus be able to claim that the information was exempt if it could make out a plausible argument that its disclosure would prejudice one of the interests described in s.36. Depending on the subject matter of the request, it might also be possible for the department to invoke various other grounds of exemption. Information concerning rail safety might, for example, be exempt on the ground that “its disclosure would, or would be likely to, prejudice the commercial interests of any person” (s. 43(2)). Having decided that the information was exempt, the department would then be obliged to apply the public interest test under s.2 and would no doubt decide, after a certain amount of delay, that the public interest did not demand disclosure.

The Department might also find procedural reasons for non-disclosure. It could, for example, point to the fact that the exemptions under ss. 35 and 36 are relaxed only in relation to statistical information and not factual information generally. On this basis, the department could argue that only a specially prepared transcription of the statistics could be disclosed and not copies of the original documents containing them. It might also be possible to argue, in some cases, that the cost exceeded the appropriate limit under s.12.

The journalist would then appeal to the Commissioner. If the Commissioner’s eventual decision favoured the journalist, a Cabinet Minister might use his power of executive override to prevent disclosure. If he did so, the chances of successful judicial review of the veto would be limited, for the reasons given above. Alternatively, appeals to the Information Tribunal and the Courts might follow the Commissioner’s decision.

Of course, this combination of arguments over the meaning of statutory provisions, review of the exercise of statutory discretion and endless appeals will not strike the lawyer as unusually complex. But it is not the purpose of an FOI regime to create a happy hunting ground for lawyers. The information I have chosen for my example is of a kind which most proponents of FOI think should be disclosed as a matter of course. Even the existing Code of Practice on Access to Government Information suggests that this should be so. Yet, under the Act, if the Government were determined to withhold such information, patience, plentiful resources and legal expertise would be required to compel its disclosure. Even with these on his side, an applicant might not succeed. It hardly needs to be added that an unsophisticated or poorly resourced applicant would be unlikely to get beyond the first or second step of the process here described.

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The substantive provisions of the Act will not come into force until the end of the period of five years beginning on the day which the Act was passed or such earlier date as the Secretary of State may appoint (s.87(3))⁽²³⁾. In attempting to assess the likely effectiveness of the regime which the Act creates, two questions must be asked. The first is whether the Act creates a genuine right of access to information, one subject only to limited and specific exceptions. The answer to this question involves a number of imponderables. Nonetheless, I venture the following prediction. The right which the Act creates will turn out not to be genuine. Instead, applicants for information will be faced with a hit or miss procedure, one which will sometimes compel the Government to divulge information which it would rather keep secret, but which will on other occasions enable it to suppress information which FOI regimes elsewhere would make available.

The second question to be asked is whether the Act will bring about a genuine change in the culture of public authorities. The question can be put otherwise by asking: will the Act create a state of affairs in which public authorities find it easier to disclose information as a matter of routine than to keep it secret? Here it is worth repeating a criticism often made of the Government during the Bill’s passage, namely that it confuses open government with freedom of information. The former denotes a policy on the part of government of making information available to the public. The latter denotes conferring upon the public an enforceable right to information. The Act provides plenty of means for the authority desirous of disclosing information to do so. But it has always been open to authorities to disclose information if they wanted to. The point of an FOI regime is to make them. The discretionary powers which the Act provides could be made the vehicle for disclosing information: but they could equally well serve as a means to withhold it. To take an obvious example, the Secretary of State could discourage applications for information by the simple expedient of fixing fees at a level which most citizens will not feel able to pay.

The title of this note poses a question: is the Freedom of Information Act genuine or a sham? An easy answer would be that the truth lies somewhere between these two extremes. If one asks, however, whether the Act is closer to one end of the spectrum or the other, the answer must be that it is closer to being a sham than to being genuine.

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Birkinshaw (1996) Freedom of Information

Campaign for Freedom of Information (1995) Evidence to the Select Committee on the Parliamentary Commissioner for Administration (the Ombudsman) on the operation of the Code of Practice on Access to Government Information http://www.cfoi.org.uk/ombud1.html

Campaign for Freedom of Information (1997) Freedom of Information: Key Issues http://www.cfoi.org.uk/pdf/keyissues.pdf

Campaign for Freedom of Information (1999) Briefing for the Second Reading of the Freedom of Information Bill in the House of Commons on 9^th December 1999

http://www.cfoi.org.uk/pdf/2rbrief.pdf

HC 570, Freedom of Information Draft Bill, Third Report by the Select Committee on Public Administration, House of Commons Session 1998/9 (London, HMSO)

HL Paper 97, Report from the Select Committee Appointed to consider the Draft Freedom of Information Bill, House of Lords Session 1998-9 (London, HMSO)

Sedley (2000) “Information as a Human Right” in Beatson and Cripps eds. Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams

White Paper (1997) Your Right to Know: the Government’s Proposal’s for A Freedom of Information Act Cm 3818.

⁽¹⁾ See EC Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, OJ L145/43.

⁽²⁾ HL Deb, 17 October 2000, col 897. For a detailed account of the rationale underlying FOI, see Birkinshaw (1996). For an argument that access to information should be treated as a fundamental human right, see Sedley (2000).

⁽³⁾ On the parallels between public interest immunity and FOI see the Campaign for Freedom of Information (1997) p.3. By far the best single source of information about FOI in this country and generally is the Campaign for Freedom of Information’s website at http://www.cfoi.org.uk.

⁽⁴⁾ Consumer Credit Act 1974; Data Protection Act 1984 (see now Data Protection Act 1998); Access to Personal Files Act 1987 and associated regulations; Access to Medical Reports Act 1988; Education (School Records) Regulations 1989; Access to Health Records Act 1990; Human Fertilisation and Embryology Act 1990.

⁽⁵⁾ For criticism of the Code see the Campaign for Freedom of Information (1995) and (1997).

⁽⁶⁾ As Lord McNally remarked, this “was like asking Count Dracula to look after the blood bank” HL Deb, 20 April 2000, col 836.

⁽⁷⁾ It is described in its long title as “An Act to make provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes.” This hardly sends out a clear signal as to the Act’s basic purpose.

⁽⁸⁾ The exemptions not subject to the public interest test are those contained in ss.21, 23, 32, 34, 36 so far as relating to information held by the House of Commons or House of Lords, 41, 44 and certain parts of s.40.

⁽⁹⁾ Note, however, that this power was to be subject to “executive override”, as to which see further below.

⁽¹⁰⁾ See Hugo Young “See the Lib-Dem approach: compliant, abject and half-baked” The Guardian 14 November 2000.

⁽¹¹⁾ See the debate at the Report Stage in the House of Lords, especially the speech of Lord Lester, HL Deb, 14 November 2000, col 135.

⁽¹²⁾ Whether the Government really was changing its tune is a matter open to debate. There is a studied ambiguity about some of the statements made by the Minister of State, Lord Falconer, during the Bill’s passage through the Lords. Compare HL Deb, 17 October 2000, cols 898 and 901, 19 October 2000, col 1267 and 14 November 2000, col 143; and see further below n 16.

⁽¹³⁾ In giving content to the notion of the public interest in disclosure, some assistance might be gained from the jurisprudence of the European Court of Human Rights. In certain cases, the Court has held that Convention rights entitle their holders to information held by public authorities. A leading example is Guerra v. Italy (1998) 36 EHRR 57. The applicants in the case were inhabitants of an Italian town whose lives and health were put at risk by the activities of a nearby chemical plant. The local authority had failed to make available information that would have enabled them to assess the degree of risk involved. The Court held that this constituted failure to secure the applicants’ right to respect for their private and family life as required by Art 8. However, there is no general right to publicly held information under the Convention: see Guerra paras 50-54. Moreover, the approach adopted in cases such as Guerra is unlikely to lead, in the medium term at least, to more than a patchwork of rights to information.

⁽¹⁴⁾ A small redeeming feature is that an authority refusing to disclose information in the public interest is obliged by s.17(3) to state its reasons for claiming that the public interest in maintaining the exemption outweighs that in disclosure.

⁽¹⁵⁾ As noted above, there was some talk in the Lords of reversing the “burden of proof”. This concept has little application in the context of FOI. Neither side in a dispute over whether to disclose information has to prove factual allegations. The applicant will say that disclosure of the information is in the public interest. The authority will say that it is not and may, no doubt, claim that various bad consequences will follow from disclosure. The Commissioner will make up her mind partly on the basis of representations made to her, but largely, one suspects, on the basis of the information itself. It makes little difference to this process whether the public interest in disclosure must outweigh the public interest in non-disclosure or vice versa. Either way, the two interests must be balanced.

⁽¹⁶⁾ Some support for the view that s.2 creates a presumption in favour of disclosure might also be derived from the statement made by the Lord Falconer in commending the Liberal Democrats’ amendments to the Lords. His Lordship said that “information must be disclosed except where there is an overriding public interest in keeping specific information confidential” (HL Deb, 14 November 2000, col 143). However, it is not clear to what extent these words can be taken as endorsing Lord Lester’s view of the effect of s.2, or to what extent they represent a departure from the Government’s earlier characterisations of the Bill.

⁽¹⁷⁾ See e.g. Canada’s Access to Information Act 1982, New Zealand’s Official Information Act 1982, Ireland’s Freedom of Information Act 1997.

⁽¹⁸⁾ The Home Secretary has published a draft code of practice under s.45, available on the Home Office website at http://www.homeoffice.gov.uk/foi/dftcp00.htm. This directs authorities to publish their procedures for dealing with requests for information and states that they should be referred to in the authorities’ publication schemes (para 6). In many respects, the proposed code is not terribly specific, so the question whether an authority had complied with it would, in many cases, be hardly more clear-cut than the question whether the authority had acted reasonably.

⁽¹⁹⁾ The office of Information Commissioner subsumes that of Data Protection Commissioner under the Data Protection Act 1998 and will be occupied by the current Data Protection Commissioner. The Data Protection Tribunal likewise becomes the Information Tribunal, referred to below, and performs the functions required under each of the two Acts: see FOIA s.18.

^(20] See HC Deb, 4 April 2000, col 921.

⁽²¹⁾ Subs. 2 requires that the accountable person state in the certificate “that he has on reasonable grounds formed the opinion” that there was no failure to comply with the authority in question’s duty to disclose or to confirm or deny the possession of exempt information. No doubt the better view of this would be that the grounds must be objectively reasonable, but it is also arguable that the Minister need only believe, subjectively, that they are reasonable.

⁽²²⁾ See HC Deb, 4 April 2000 cols 921-922 and 5 April 2000 cols 1094-1096. See also Lord Falconer at the Lords’ Committee Stage HL Deb, 25 October 2000 col 443.

⁽²³⁾ At present the Act is expected to come into effect in Summer or Autumn 2002 for central government departments and in stages thereafter for other public authorities.