(ARTICLE 19/IFEX) – The following is a 31 March 2000 ARTICLE 19 letter to UK Home Secretary Jack Straw expressing concern over proposed Freedom of Information legislation: 31 March 2000 The Right Honourable Jack Straw PRIVATE Home Secretary Home Office 50 Queen Anne’s Gate London SW1H 9AT Thank you for your letter of 29 November […]
(ARTICLE 19/IFEX) – The following is a 31 March 2000 ARTICLE 19 letter to UK Home Secretary Jack Straw expressing concern over proposed Freedom of Information legislation:
31 March 2000
The Right Honourable Jack Straw PRIVATE
Home Secretary
Home Office
50 Queen Anne’s Gate
London
SW1H 9AT
Thank you for your letter of 29 November 1999 responding to some of the concerns I had raised regarding the Freedom of Information Bill in my letter to you of 2 November 1999. I am writing again on the same subject because ARTICLE 19 still has a number of serious concerns regarding the Bill, which I understand will be considered by the House of Commons on 4-5 April.
ARTICLE 19 welcomes some of the amendments tabled so far, for example reducing the time limit for disclosure from forty to twenty days and strengthening the powers of the Information Commissioner in relation to public interest disclosures. At the same time, the Bill still does not meet international standards and best practice in this area, lagging behind similar Bills or recent legislation in countries such as Bulgaria, Moldova, Nigeria and South Africa. We have a number of concerns, of which the most important are: weaknesses in the system of public interest disclosures; the excessively broad regime of exemptions and the fact that the regime in the Bill would be subject to any secrecy, or other, laws which may preclude disclosure under the Bill.
The Regime of Exemptions
We reiterate that the regime of exemptions goes far beyond what has been considered legitimate and necessary in other jurisdictions and again recommend a more specific and narrowly defined set of exemptions, subject to a substantial harm test. In this regard, we enclose for your consideration the attached Real Table 2, an Annex to our original submission on the Bill, which compares the exemptions in the June 1999 Draft Bill with those of a number of other jurisdictions.
We are particularly concerned at the continued wholesale exclusion from the ambit of the Bill of security bodies and the effective extension of this exclusion, by virtue of clause 21, to all information held by other public authorities which was supplied, directly or indirectly, by a security body. There is no legitimate justification for this blanket exclusion and we recommend Amendment 92, tabled by Shepherd, Davis, Wright, Fisher, Maclennan and Heath, which proposes to leave clause 21 out of the Bill.
We are also concerned at a number of remaining class exemptions, in particularly relating to national security (clause 22), a wide range of investigations (clause 28(2)(a)(iii)), policy formulation (clause 33(1)) and communications with Her Majesty (clause 35). We note that amendments have been proposed in relation to all but the last of these, which would transform them into harm- or prejudice-based exemptions, and we recommend that you adopt these proposals.
Finally, we are concerned at the potential breadth of some of the exemptions, in particular the apparent duplication of the national security exemption in clauses 22 and 24, and the sweeping breadth of the policy formulation exemption in clause 33(1). We are strongly of the view that factual information should not be exempted simply because it has been used as a basis for policy development or the other matters listed in clause 33(1).
As noted above, we consider that the power you have arrogated to yourself pursuant to clause 43 of the Bill is unjustifiable. Under this clause, you have virtually unfettered power to exempt information based on your view of the public interest. This could easily involve you in conflict of interest situations and is, furthermore, a power that none of the countries surveyed in the Real Table 2 have found to be necessary.
The System for Public Interest Disclosure
A strong public interest test is always an important component of legislation promoting open government. The public interest test is particularly relevant here, in light of the excessively broad regime of exemptions provided for in the Bill, which the government has so far been unwilling to limit. We have two main concerns about the system for public interest disclosure. First, several exemptions are not subject to any form of public interest override. We are of the view that no exemption should be absolute and that all may be overridden in appropriate cases. We therefore recommend that all exemptions should be subject to public interest override, as recommended in Amendment 1, tabled by Wright, Fisher, Maclennan, Heath and Shepherd. We are particularly concerned that the exemptions in clause 21 (security), clause 42 (secrecy laws) and clause 43(2) (your personal public interest override) are not subject to a clause 13 override.
Second, while we welcome your proposals to expand the powers of the Information Commissioner in relation to public interest disclosure, in Amendments 64 and 66, we are strongly of the view that these are fundamentally and unnecessarily undermined by your proposal to introduce Amendment NC6. The combined effect of your proposals is to give the Information Commissioner binding powers to order disclosure in the public interest, but at the same time to allow Ministers and local authorities to effectively veto any order of this sort. We have consistently called for the Commissioner to have binding powers in this area and the ‘clawback’ provision of NC6 seriously undermines her ability effectively to use the powers you have, in the latest proposal, agreed to grant her.
The inappropriateness of the clawback is highlighted by clause 43(2) of the Bill, which allows you to make an order exempting any information where you consider this action to be in the overall public interest. As noted above, this exemption is not subject to any public interest review by the Information Commissioner. We strongly object to this power. This multiplication of government powers to override or exclude decisions by the independent Information Commissioner is clearly unjustifiable.
We recommend, instead, that you adopt Amendment 5 proposed by Wright, Fisher, Maclennan, Heath and Shepherd, which increases the powers of the Information Commissioner as you have proposed, without then limiting these powers.
Secrecy Laws
ARTICLE 19 constantly stresses the need for freedom of information laws to be superior to, rather than subject to, secrecy laws if the public’s right to know is to be guaranteed in practice. The secrecy laws in place in the United Kingdom go far beyond what is necessary to protect legitimate interests and substantially undermine the potential for openness which the introduction of freedom of information legislation represents. We urge you to consider repealing, or at least refining, clause 42, which exempts all information whose disclosure is prohibited under any other enactment.
ARTICLE 19 sincerely hopes that you will further amend the Bill to take into account our concerns, so that it more closely resembles the original proposals outlined in the December 1997 White Paper. There is still time to ensure that the legislation meets the highest international standards, as set out in the ARTICLE 19 publication, The Public’s Right to Know: Principles on Freedom of Information Legislation, a copy of which we have attached for your interest. The United Kingdom should not only be providing its people with rights at least equal to those enjoyed by the citizens of other countries, but should also take this opportunity to set a progressive example for countries around the world.
Yours sincerely
Andrew Puddephatt
Executive Director
Recommended Action
Similar appeals can be sent to:The Right Honourable Jack Straw
Home Secretary
Home Office
50 Queen Anne’s Gate
London
SW1H 9ATPlease copy appeals to the source if possible.
