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«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»

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Some of the exemptions are subject to a harm test, but the majority are not, making them class exemptions. These include: information accessible by other means (section 21), information intended to be published (section 22), information relating to security bodies (section 23), information provided confidentially by another State or intergovernmental body (section 27(2)), investigations by public authorities (section 30), court records (section 32), parliamentary privilege (section 34), formulation of government policy (section 35), communications with Her Majesty (section 37), most personal information (section 40), information provided in confidence (section 41), legally privileged information (section 42), trade secrets (section 43(1)), and information the disclosure of which is prohibited by any other law or European Community obligation (section 44). In a few cases, for example legally privileged information, these exemptions already effectively incorporate an internal harm test. Most, however, do not despite the fact that, as 346 Section 19.

347 Although in practice, so far, there is little uniformity in the schemes produced by different authorities, apart from those who have adopted the model publication schemes.

Freedom of Information: A Comparative Legal Survey demonstrated by the practice in other countries, it would be possible to apply one.

The Act does provide for a public interest test, albeit in negative terms, providing that the obligation to disclose does not apply where, "in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information".348 This is a good test, requiring the grounds for exemption to outweigh those in favour of disclosure. It is, however, undermined in two key ways. First, Section 2(3) provides a long list of exemptions which are "absolute", in the sense that the public interest override does not apply. These include: information accessible by other means (section 21), information relating to security bodies (section 23), court records (section 32), parliamentary privilege (section 34), the conduct of public affairs in relation to both houses of parliament (section 36), most personal information (section 40), information provided in confidence (section 41), and information the disclosure of which is prohibited by any other law or European Community obligation (section 44). Most of these are themselves class exemptions.

The exceptions to the public interest override are wide but even more significant is the power provided for in section 53 which relate to decisions by the Commissioner in relation to the public interest override.

This allows the "accountable person" at any of the public authorities covered by this section, normally a minister, within twenty days of decision by the Commissioner that the public authority is in breach of the law, to sign a certificate that, "he has on reasonable grounds formed the opinion that, in respect of the request or requests concerned, there was no failure" to comply with the law. The effect of such a certificate is effectively to void the Commissioner's decision. This power is granted to all government departments, the National Assembly of Wales and any other public authority so designated by the Secretary of State. In practice, this substantially undermines the enforcement powers of the Commissioner in relation to the public interest override.

The three general exemptions are for vexatious or repeated requests (section 14), information which is already reasonably accessible to the applicant, even though this involves payment (section 21), and information intended to be published, as long as it is reasonable not to disclose it pursuant to the request, even though no date of publication has been set (section 22).

348 Section 2(2)(b).

–  –  –

As noted above, there are some twenty specific exemptions. Given the large number of exemptions, only a few which merit special attention are described here. Section 23 of the Act exempts information which was "directly or indirectly supplied to the public authority by, or relates to" the work of a long list of security bodies and oversight tribunals. For the security bodies, this exemption is in addition to their total exclusion from the ambit of the Act. Furthermore, a certificate by a minister that the information either was supplied directly or indirectly by one of these bodies, or that it relates to their work, is conclusive evidence of that fact, subject to standards of judicial review. This is a very broad class exemption indeed, which would include, for example, information on the purchase of pencils by the special forces and held by the government accounting department.

The Act contains exemptions for information "required for safeguarding national security"349 or the disclosure of which would prejudice defence.350 However, as with security bodies, a certificate by a minister that the information is required for national security is conclusive evidence of that fact.

Information is exempt if it is held by a government department or by the National Assembly for Wales and relates to the formulation or development of government policy. However, this exemption ceases to apply to statistical information, but not other information, once the policy has been adopted. Information is also exempt if it relates to ministerial communications or the operation of any ministerial private office.351 Information is also exempt if disclosure would inhibit the "free and frank provision of advice" or otherwise prejudice "the effective conduct of public affairs".352 Although these exemptions are phrased broadly, they do at least include harm tests.





The United Kingdom FOI Act, in common with many other such laws but contrary to the principles set out above, also preserves secrecy provisions in other laws, as well as disclosures prohibited by European Community obligations or the rules relating to contempt of court.353 However, the Act also gives the Secretary of State summary powers to repeal or amend by order laws restricting disclosure.354 This may serve 349 Section 24.

350 Section 26.

351 Section 35.

352 Section 36.

353 Section 44.

354 Section 75.

Freedom of Information: A Comparative Legal Survey to mitigate at least the most egregious problems of leaving in place secrecy laws.

The Act also contains detailed provisions relating to historical records, defined as records which are more than 30 years old. A number of the exemptions no longer apply to historical records, including those protecting relations within the United Kingdom (section 28), court information (section 32), those protecting internal government processes (sections 35 and 36) and commercially confidential information (section 43).355 The Act provides that nothing contained within it shall be deemed to limit the powers of a public authority to disclose information.356 Thus, like most freedom of information acts, it is not in any way a secrecy law as well.357 Appeals The United Kingdom FOI Act provides for three levels of appeal, first within the public authority which holds the information, second to the Information Commissioner and then to a special Information Tribunal. Both of these bodies were established under the Data Protection Act 1998 as, respectively, the Data Protection Commissioner and the Data Protection Tribunal. The Commissioner is appointed by Her Majesty358 and the Tribunal consists of a chair and a number of deputy chairs appointed by the Lord Chancellor (effectively the Minister of Justice) as well as a number of other members appointed by the Secretary of State.359 Despite this appointments process, both effectively operate as independent bodies.

Section 45 provides for the publication by the Secretary of State of a code of practice dealing with various matters including internal procedures for dealing with complaints relating to requests for information.

Pursuant to section 50, the Information Commissioner must consider all complaints relating to the manner in which requests have been dealt 355 Part VI.

356 Section 78.

357 The United Kingdom has, for this purpose, the Official Secrets Act 1989, a law which has been

widely criticised. See, for example, ARTICLE 19 and Liberty, Secrets, Spies and Whistleblowers:

Freedom of Expression and National Security in the United Kingdom (2000, London, ARTICLE 19 and Liberty).

358 Data Protection Act 1998, section 6(2).

359 Data Protection Act 1998, section 6(4).

Country Profiles

with under the Act unless the complainant has not exhausted any internal complaints procedures, there has been excessive delay or the complaint appears frivolous. Upon receipt of a complaint, the Commissioner must issue a decision notice and, where there has been a breach of any provision in Part I - including the obligation to disclose information, a failure to disclose in the form requested or a failure to properly notify the requester of reasons for any refusal to disclose - this notice should direct the public authority to take steps to rectify the problem.

The Commissioner has the power to require any public authority to provide him or her with any information he or she may require either pursuant to a complaint or for purposes of ensuring that the authority has complied with its obligations under the Act.360 The Commissioner may also require a public authority to take such steps as are necessary to comply with its obligations under the Act, even in the absence of a complaint.361 Where a public authority fails to take the steps required of it by the Commissioner, he or she may notify the courts of this fact and the courts may inquire into the matter and, if it is substantiated, deal with the authority as if it had committed a contempt of court.362 Either the requester or the public authority may appeal to the Tribunal against any decisions or orders of the Information Commissioner. The Tribunal has the power to review the decision of the Commissioner on both points of law and fact.363 Either the Commissioner or anyone whose request has been denied may appeal to the Tribunal against a Ministerial certificate stating either that information relates to security bodies or that it is required for safeguarding national security. As regards the former, where the Tribunal finds that the information is not exempt, it shall quash the certificate. Regarding national security certificates, the Tribunal shall apply the standards of judicial review and quash it if the Minister did not have reasonable grounds for issuing the certificate.364 A further appeal lies from a decision of the Tribunal on points of law.365 360 Section 51.

361 Section 52.

362 Section 54.

363 Sections 27-58.

364 Section 60.

365 Section 59.

Freedom of Information: A Comparative Legal Survey Promotional Measures The UK FOI Act contains a number of promotional measures. At a very general level, it provides for monies to be allocated to ensure its proper implementation,366 and protects public authorities from defamation claims when it discloses information provided by third parties, as long at is did not act with malice.367 It also makes it an offence for any person to alter, deface, destroy or conceal any record with the intention of preventing the disclosure of that record.368 More significant are the two codes of practice that the Act provides for. The first, set out in section 45, is a code of practice to be developed by the Secretary of State to provide guidance to public authorities on a

number of matters including:

the provision of advice to persons making requests for information;

the transfer of requests between public authorities;

consultation with third parties likely to be affected by a disclosure;

the inclusion in contracts of terms relating to information disclosure; and how public authorities should deal internally with complaints.

The code is not binding, but the Information Commissioner has various promotional roles, detailed below, in relation to this code.

Second, pursuant to section 46, the Lord Chancellor (the Minister of Justice) shall issue a code of practice providing guidance to public authorities regarding practice which it would be desirable for them to follow in connection with the keeping, management and destruction of their records. This code shall also deal with the issue of transfer of records to the Public Record Office (the archives), including the destruction of those records which are not to be transferred. Again, the code is not binding, but the Information Commission has a mandate to promote compliance with it.

The Information Commissioner has a general mandate under Section 47 to promote compliance with the Act, the two codes of practice noted 366 Section 85.

367 Section 79.

368 Section 77.

–  –  –

above and generally good practice in relation to the maintenance and disclosure of information. For this purpose, the Commissioner is specifically empowered to provide information on matters within the scope of his or her functions, to assess the performance of any public authority,369 issue practice recommendations on the extent to which public authorities are complying with the two codes of practice noted above,370 and to report annually, as well as on an ad hoc basis, to parliament.371 369 Section 47.

370 Section 48.

371 Section 49.

Freedom of Information: A Comparative Legal Survey United States Introduction The United States was one of the first countries to embrace freedom of information after Sweden,372 adopting legislation giving effect to this right in

1966. Since that time, despite ups and downs, it is fair to say that a significant culture of openness has developed in government, fuelled not only by the Freedom of Information Act373 but also by the activities of whistleblowers, as well as the Privacy Act,374 which gives access to personal information held by public authorities, the Government in the Sunshine Act,375 which requires disclosure of the deliberations of certain bodies, primarily those with governing boards, and the Federal Advisory Committee Act,376 which requires committees that advise federal bodies to be open. In addition, all States now have freedom of information acts of their own.



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