Questions and answers for a freedom of information act

Robert Hazell memo to lord irvine

This week the Cabinet Sub-Committee on Freedom of Information met for the second time under your chairmanship. The original target was to publish a White Paper in July, but with the Cabinet Committee on Devolution in permanent session all through the summer, only one meeting was managed on FoI before the summer recess. It will be important now to make good progress to meet the revised target of a White Paper by Christmas and a draft bill in the New Year.

Ministers raised a number of concerns last time about the draft circulated by David Clark, Chancellor of the Duchy. This time they are likely to concentrate on departmental concerns. The background note prepared by the FoI unit in the Cabinet Office on the operation of FoI overseas offers a good cross-check on which of the departmental concerns are fanciful and which are real. The main difficulty is going to be resources. FoI could require an additional 500 to 1,000 civil servants, when departments are already hard pressed and likely to be squeezed further by comprehensive spending reviews.

Objectives

To balance a tough financial regime we can afford to be reasonably liberal on other fronts. You might like to propose the following overall objective: "That FoI legislation in the UK should confer the widest possible access at the lowest possible cost, both in resource terms and in terms of its impact on the efficient and effective conduct of government". Although these aims are in potential conflict, experience overseas shows that access can be maximised without necessarily incurring extra costs.

Scope

This is a major strategic decision. How far should the legislation extend in terms of the levels of government affected? Should it cover quangos and other public bodies? Should it extend to local government, to schools, colleges and universities, hospitals and NHS trusts? With the Government's majority and extended honeymoon, a single swoop is possible - but only with the active support of ministerial colleagues. They may prefer not to take on too many targets at once; or to implement the legislation in phases, starting with central government, and gradually extending outwards.

Personal files

These form the bulk of requests for information overseas - not the policy papers or advice to ministers which occupy so much public debate here. In some countries access to personal files is governed by a separate legislative regime. The Home Office had the opportunity to propose doing the same here when implementing the latest European Data Protection Directive, but they have decided to do the minimum in applying the directive to manual files. That means that the FoI Act will have to cover access to personal as well as general policy files. It will make life simpler for applicants, but may restrict the Government's freedom of manoeuvre when it comes to charging for access to personal files, because of the overlap between the freedom of information and data protection regimes.

Exemptions

All FoI legislation has a core of around a dozen exemptions to protect vital national interests, the deliberations of government, and third- party information. The standard exemption provisions over national security and defence; international relations; law enforcement; Cabinet papers; civil service advice; legal advice; damage to the economy; trade secrets; personal information about third parties; and information protected by other statutes. There is no need to add to this core list: the exemptions have proved effective in protecting those matters which governments need to keep secret. The exemptions should be discretionary, not mandatory, so that departments are free to release exempt information if they so choose. And they should be subject to an overriding public interest test, so that they are applied sensitively and not in a blanket way.

Appeals machinery

The choice of review machinery is crucial; it is the right of appeal which makes the right of access effective. Overseas experience suggests that review should not be by the courts, because of their expense, delays and lack of expertise. Tribunals can also become adversarial and legalistic. The review machinery needs to be speedy, informal and cheap; effective, with a power to order disclosure; and expert, so that it produces good case law. An FoI Commissioner with order-making powers is the best model. The Commissioner could be free-standing, or the office could be combined with the Parliamentary Ombudsman or the Data Protection Registrar.

Costs and charges

A Freedom of Information Act will attract a much higher volume of requests than the little known Code of Practice on Open Government, because the legislation creates its own publicity. The early years in Australia and Canada may be a better guide to the likely volume of requests than the trickle there has been under the Code.

The UK might expect to receive some 50,000 requests in the first year, and double that in the second or third as awareness grows.

Eighty to 90 per cent of these requests are likely to be for personal files, concentrated on a few big case-working agencies: the Inland Revenue, Benefits Agency, Child Support Agency, Immigration Service, Prison Service. These agencies will be hard hit.

Canada reports that it takes an average of seven staff hours to process a request for access to a personal file, and 50 staff hours to deal with a general file. The Australian figures are similar. In both countries most personal files are available free of charge; and it will be difficult to charge much in the UK, when the maximum fee for access under the Data Protection Act is pounds 10. Full cost recovery is impossible; but the charging rate could differ between requests for personal files and general information. The majority of general requests will come not from individuals but from businesses, the media and other organisations.

Robert Hazell is director of the Constitution Unit, University College, London.