Freedom of information is not a lost cause

From a speech by Maurice Frankel, the director of the Campaign for Freedom of Information to a public-sector conference in London
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Tony Blair promised a Freedom of Information Act that would sweep away unnecessary secrecy about health hazards such as BSE. But the Government's Bill is packed full of exemptions that will allow complacent public authorities to cover their tracks, at our expense.

Tony Blair promised a Freedom of Information Act that would sweep away unnecessary secrecy about health hazards such as BSE. But the Government's Bill is packed full of exemptions that will allow complacent public authorities to cover their tracks, at our expense.

At the heart of the Bill are a series of exemptions which allow all information about government decision-making in general, and safety problems in particular, to be concealed. Only if there was an overriding public interest in openness could the Bill's information commissioner order disclosure. Even then, ministers would be able to veto any order served on government departments. Under a bizarre "right-to-silence" provision, ministers could refuse to even acknowledge whether any such information existed at all.

Next, the Bill exempts all information which "in the reasonable opinion of a qualified person would prejudice the effective conduct of public affairs". Ministers themselves describe this as a "catch-all" exemption.

A third exemption protects the findings of prosecuting authorities and consumer agencies, from the Railway Inspectorate to the Trading Standards officers. Anything obtained during a routine inspection is exempt forever, even if there is no pending prosecution to be jeopardised. Here the Government shows a truly breathtaking lack of insight. What if safety inspectors fail to spot defective railway tracks, or the fact that BSE controls are not being followed, or inadequate safeguards against leaks of dangerous chemicals or radiation?

The evidence may be in the file, but the file will be closed to the public. In all these areas, the Bill's public-interest test could come to the rescue. Yet the test places the burden on someone - either the applicant or the commissioner - to show that disclosure would be in the public interest. But the greatest safety hazard may lie hidden in a mass of technical data, incomprehensible to the lay person, and even to the commissioner. The first step ought to be for the authority to show why disclosure would be harmful. If it can't, disclosure should automatically follow, with no further questions asked. Any disclosure required on public-interest grounds can be vetoed. Why is this necessary, given that authorities will, in any case, be able to appeal against the commissioner's decisions to a tribunal? The Government's White Paper rejected the idea, saying: "We have considered this possibility but decided against it, believing that a government veto would undermine the authority of the information commissioner and erode public confidence in the Act."

Could the secretive mishandling of BSE be repeated under the Bill? Ministers make much of the fact that the Food Standards Agency can publish its advice to ministers; and the agency appears to be setting out a commendably open approach. But ministers will get scientific advice on food from other sources, which the Bill would allow them to suppress. The next big health risk may strike in other ways: food is not the only danger. Finally, even the Food Agency might one day become defensive, and find some use for the ministerial veto.

Despite appearances, the Freedom of Information Bill is not a lost cause. Many of its other provisions are helpful. A handful of key amendments could turn it into a decent Act.

The Bill is now in the Lords, where a powerful consensus in favour of improvements has developed. It could be sent back to the Commons, days or even hours before the end of the session, looking like the kind of measure the Prime Minister used to talk about.

Tony Blair will then be faced with the choice of neutering the measure, or delivering the kind of reform he promised when he proposed a Freedom of Information Act that would "signal a new relationship between government and people, which sees election to serve the public as being given on trust".

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