«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Section 14 provides: "Official information which may jeopardise the Royal Institution shall not be disclosed." This involves a form of harm test, but it is not clear what precisely would be covered.
Section 15 is the main exception provision. It provides that a State agency may issue an order prohibiting the disclosure of official information in various categories, taking into account the duties of the agency, the public interest and any private interests involved. The reference here to public interest, although useful, is not the same as a public interest override, which should be couched in mandatory terms and should not be just one factor to be considered.
Section 15 provides for the following categories of exception:
information the disclosure of which would threaten national security, international relations or national economic security;
information the disclosure of which would undermine law enforcement;
Freedom of Information: A Comparative Legal Survey
Appeals The Act provides for the establishment of an Official Information Board consisting of a number of Permanent Secretaries, for example, for defence, agriculture and commerce, along with the Minister appointed by the Prime Minister as chair and 9 other members, appointed by the Council of Ministers, from the public and private sectors.314 Members hold office for 3 years, which may be renewed, and may be removed for, among other things, being incompetent or having been imprisoned.315 312 Section 16.
313 Section 26.
314 Section 27.
315 Sections 29 and 30.
These provisions fail to ensure the independence of this body although in practice is has garnered public respect.
Anyone who considers that a State agency has failed to publish information, to make information available or to provide information in response to a request may lodge a complaint with the Official Information Board. This right is not applicable in certain cases, including where the State agency has issued an order declaring the information exempt or an order refusing to correct personal data.
These limitations seriously undermine the effectiveness of an appeal.
The Board must issue a decision within 30 days, which can be extended for another 30 days upon notice to the requester.316 The Board can also require the State agency to produce any information before it, as well as inspect their premises.317 Failure to comply with an order of the Board in relation to summons or producing information may lead to imprisonment for up to three months and/or a fine.318 In addition to this, the Board has a mandate to provide advice to State officials and agencies, to make recommendations regarding the enactment of regulations or rules under the Act, to provide an annual report on implementation to the Council of Ministers and to carry out other duties as entrusted to it by the Council of Ministers or Prime Minister.319 Requesters and others may, within 15 days, appeal a decision through the Board to the Information Disclosure Tribunal, even when an order for non-disclosure has been issued. The Board shall constitute specialized Tribunals, based on the type of information in question, such as security, economy or law enforcement. Each Tribunal consists of at least three people, with government officials as the secretary and assistant secretary.
The Tribunal shall decide appeals within seven days and their decisions are considered final.320 The Board, Tribunal or courts shall consider the matter without divulging the information in dispute.321 316 Section 13.
317 Sections 32 and 33.
318 Section 40.
319 Section 28.
320 Sections 36 and 37.
321 Sections 18 and 19.
Freedom of Information: A Comparative Legal Survey Promotional Measures The Thai Act includes few promotional measures. Officials are protected against liability for disclosing information in good faith as long as they act in accordance with the rules on non-disclosure or in the public interest (see above under exceptions).322 The Act also includes a chapter on protection of personal data, limiting the collection, storage and use of such data. This system also allows everyone to access their own personal data, subject to the regime of exceptions.323 322 Section 20.
323 Sections 21-25.
United Kingdom Introduction The United Kingdom presents an interesting conundrum on freedom of information, contrasting a vibrant media operating in an atmosphere of relatively high respect for freedom of expression with a government which has, at least until recently, been obsessed by secrecy. This explains the odd situation whereby a freedom of information law was not passed in the United Kingdom until November 2000,324 long after most established democracies had adopted such a law. Even so, the right of access will now not come into effect until January 2005, although certain other parts of the law will. The United Kingdom FOI Act includes very good process guarantees, along with a number of innovative promotional measures. At the same time, it is seriously undermined by the very extensive regime of exceptions.
Definitions The Act defines information simply as "information recorded in any form,"327 which is held by the public authority at the time the request is 324 The Freedom of Information Act 2000. Available online at: http://www.cfoi.org.uk/foiact2000.html.
325 Section 1(3).
326 These reasons for non-disclosure are set out in section 1(2).
327 Section 84.
Freedom of Information: A Comparative Legal Survey received.328 It is understood that this includes any information whatsoever held by the public authorities, regardless of its form, status, date received, or whether or not it was produced by the body. However, the Act also provides that information is understood to be held by a public authority if it is held otherwise than on behalf of someone else, or if someone else holds it on behalf of the authority.329 Thus, public authorities cannot escape their obligations simply by getting someone else to hold the information.
The main means under the Act for designating public authorities330 is through a list set out in Schedule 1, running to some 18 pages. The list includes all government departments, the various legislative bodies (the Act does not cover Scotland, which has its own law, the Freedom of Information (Scotland) Act 2002), the armed forces and numerous other bodies listed individually by name. It does not, however include the special forces or, with a few small exceptions, the court system. The Act also provides that the Secretary of State may add to the list of bodies in Schedule 1 subject to certain conditions,331 or more generally designate as public authorities bodies which "exercise functions of a public nature" or which provide under contract services for a public authority.332 Finally, publiclyowned corporations, defined as bodies wholly owned by the Crown or a public authority other than a government department, are also public authorities.333 The Act also provides that where a body is designated as a public authority only in relation to certain information held, the obligation of disclosure is similarly restricted to that information.334 Process Anyone wishing to access information may submit a request in writing specifying their name and address, as well as a description of the information desired. A request is deemed to be in writing if it is received electronically, as long as it is legible and capable of being used for subsequent reference.335 Public authorities are required to provide such 328 Section 1(4).
329 Section 3(2).
330 Defined in section 3(1).
331 Section 4.
332 Section 5.
333 Section 6.
334 Section 7.
335 Section 8.
assistance to requesters, "as it would be reasonable to expect the authority to do".336 While the extent of this obligation is not spelt out, it would at least include advice on how to describe the information appropriately, as well as assistance in reducing a request to writing where the requester was unable to do so themselves, for example because of illiteracy or disability.
A public authority must normally either provide the information or inform the requester of its refusal to do so promptly and, in any case, within twenty working days. For the purpose of calculating the twenty days, the time between informing the requester of the fees to be paid and the date on which those fees are actually paid is not counted. The Secretary of State may, by regulation, extend this period in respect of different classes of information, to up to 60 days. Any notice of a refusal to disclose must state the exemption which is being applied and the reasons therefore.
A slightly different regime applies where disclosure depends on a consideration of the overall public interest, which may justify disclosure even of otherwise exempt material.337 In such cases, the public authority does not need to provide the information, "until such time as is reasonable in the circumstances".338 However, the requester must be notified within the twenty days that the matter is still under consideration, and this notice should give an estimate of the time within which a decision will be made.339 Where, after such a delay, the final decision is not to disclose, a further notice must be sent setting out the reasons for this.340 The Act allows public authorities to make disclosure of information conditional upon payment of a fee and any such fee must be paid within three months.341 However, such fees must be in accordance with regulations made by the Secretary of State and these may prescribe that no fee is to be paid in certain cases, set a maximum fee and/or provide for the manner in which fees are to be calculated. Draft regulations prepared by the Lord Chancellor set fees at 10% of the marginal cost of locating and retrieving the information, plus the reproduction and postage costs.342 This regime does not, however, apply where a different system 336 Section 16.
337 See below, under Exceptions.
338 Section 10.
339 Section 17(2).
340 Section 17(3).
341 Section 9(2).
342 Available at http://www.lcd.gov.uk/foi/dftfees.pdf, section 4.
Freedom of Information: A Comparative Legal Survey of fees is prescribed by another law. Section 12 of the Act also provides that information does not need to be provided where the cost would exceed an "appropriate limit" which, in turn, shall be "as may be prescribed", currently proposed to be around £600.343 In this case, however, the information may still be provided in accordance with a different set of regulations.344 In practice, this system should in effect provide for two different sets of fees depending on the scale of the request, although its permissive language means that section 12 is formally an exception and would allow a public authority to refuse all larger requests.
Under the United Kingdom FOI Act, the requester may specify the form in which he or she wishes to receive the information. Three different forms of communication of the information are listed as options for the requester: in permanent or another form; an opportunity to inspect a record containing the information; or a digest or summary of the information in permanent or another form. The public authority must provide the information in the form requested, as far as to do so is "reasonably practicable", taking into account, among other things, the cost.345 Duty to Publish The United Kingdom FOI Act, unlike many other such laws, does not provide a list of information that each public authority much, even in the absence of a request, publish. Rather, section 19 provides that every public authority must develop, publish and implement a publication scheme, setting out the classes of information which it will publish, the manner in which it will publish them and whether or not it intends to charge for any particular publication. In adopting the scheme, the public authority must take account of the public interest in access to the information it holds and in the "publication of reasons for decisions made by the authority".
Importantly, the scheme must be approved by the Information Commissioner. The Commissioner may put a time limit on his or her approval or, with six months notice, withdraw the approval. Furthermore, the Act provides for the development of model publication schemes by the Commissioner for different classes of public authority. As long as the 343 Section 12.
344 Section 13.
345 Section 11.
scheme remains approved, any public authority within the relevant class may simply apply that scheme, rather than developing its own.346 This system seeks to incorporate a degree of flexibility in the area of publication, so that public authorities may adapt implementation in this area to their specific needs, but without granting these authorities excessive discretion, which might lead to significant variation in the extent of publication by different public authorities, as well as to levering down of responsibilities in this area.347 It also provides for oversight by the Commissioner without placing too great a burden on him or her, taking into account the very numerous public bodies, through the model publication scheme.
Exceptions The United Kingdom FOI Act has a very broad regime of exceptions, referred to in the law as exemptions, reflecting an ongoing preoccupation with secrecy in government. There are three general exceptions, as well as some twenty specific ones. In terms of the three part test for exemptions, set out above, the Act partially complies. Most of the exemptions are reasonably clear, but they are not necessarily narrow and, in some cases go beyond what has been considered necessary to withhold in other countries (see the Exceptions Table).