Freedom of Information

What is Freedom of Information?

A commitment to "Freedom of Information" is a political principle which asserts that members of the public has a right to know what the state is doing, and what it knows about them.

In practice around the world, this has usually meant a statutory right on the part of the public to see certain types of recorded information held by public authorities. This right to know has existed in Sweden since the 18th century, in the USA since 1966, in France since 1978, in Canada, Australia and New Zealand since 1982 and in the Netherlands since 1991. In the UK, freedom of information is given statutory force by the Freedom of Information Act 2000.

However, the Act does not come fully into force until January 2005. To date, the Act has required public bodies to adopt "publication schemes", which state what, when and how these bodies will make various types of information available (and what charging arrangements they have for access). What types of information should be included in publication schemes are not specified in the Act, and are decided by the public bodies and the Information Commissioner - the regime's regulator.

From January 1, 2005, a new right to request information comes into force under the Act. Any person making a request in writing to a public authority for information must, firstly, be told whether the authority holds that information, and secondly, provided with that information unless it is excluded from the right's scope under one of a number of exemptions. Exempt information need not be disclosed by the authority.

The Act includes 23 separate Sections of exemptions, which fall into two categories: "class" exemptions, which disqualify all information of a certain type from the disclosure regime; and types of information which may be exempt subject to a "prejudice" test.

Class exemptions include court records, any material relating to actual or potential criminal investigations, material relating to audits and national security. More controversially, they also cover material relating to government policy formulation (including the background information on which decisions were based) and anything else which "would in the reasonable opinion of a qualified person be likely to prejudice the effect conduct of public affairs" - something again left undefined in the Act.

Other types of information are exempt if disclosure would or would be likely to prejudice certain interests named in the Act.

The Information Commissioner has powers to override a refusal to publish information in the "public interest", by issuing an enforcement notice, following an appeal by the party whose request was refused. However, there is also provision for a "Ministerial veto", whereby the Information Commissioner's notice can be overridden, in respect of requests relating to central Government departments and the Welsh National Assembly, by a certificate signed by a Cabinet Minister, or the Welsh or Northern Irish First Minister.

The Ministerial veto, however, only applies to "public interest" notices - it does not apply in cases where the Information Commissioner has ordered disclosure on the grounds of misapplication of the exemptions or the prejudice test.

Responsibility for freedom of information today rests with the Department for Constitutional Affairs.

Background

The British state has a long tradition of secrecy and unwillingness to publish information regarding its workings. Indeed, until it was reformed in 1989, the Section 2 of the Official Secrets Act 1911 made it a criminal offence for any civil servant or public contractor to reveal any information he or she had learned in the course of his or her work: an offence that successive governments continued to prosecute well into the 1980s, despite recommendations published in 1972 by the Franks Committee calling for reform.

The Labour Party first pledged itself to a Freedom of Information Act in its 1974 election manifesto, but the precarious positions of the Wilson and Callaghan governments made progress impossible. Between then and 1997, the cause of freedom of information was largely pursued by means of Private Member's Bills.

A Private Member's Bill introduced in 1978 by Liberal MP Clement Freud attracted considerable support, but fell at the 1979 election. The Conservative government opposed similar Bills introduced in 1981 and 1984.

1984 also saw the introduction of the Data Protection Act 1984, which gave members of the public the right to see computerised records about themselves, and the Bill which subsequently became the Local Government (Access to Information) Act 1985, which required meetings of local authorities and associated documents to be open to the public.

In 1987, Archy Kirkwood's Access to Personal Files Act was passed, giving the public access to manually held social work and housing records, which was followed by the Liberal MP's Access to Medical Reports Act in 1988, Chris Smith MP's Environment and Safety Information Act, giving the public access to environmental enforcement notices, and Doug Henderson MP's Access of Health Records Act 1990. However, a general freedom of information bill, introduced by Mr Kirkwood was talked out in 1991.

In 1992, Labour published its Right to Information Bill: shadow home secretary Roy Hattersley promised that it would be the first piece of legislation introduced by a new Labour government. The Conservatives resisted legislation, but promised greater openness, appointing William Waldegrave as minister responsible for increasing transparency.

Following the talking out of Mark Fisher's Right to Know Bill in 1992, in 1993 the Government published its White Paper "Open Government". This proposed the Code of Practice on Access to Government Information, a non-statutory code regulated by the Parliamentary Ombudsman. Although the code provided wide exemptions for disclosure and the Ombudsman's rulings were non-binding, governments complied with them in every instance until 2001. The code came into force in 1994, and was followed by a parallel Code for the NHS in 1995.

At the 1997 general election, both Labour and the Liberal Democrats promised freedom of information laws. The Conservatives resisted this, but promised further implementation of the proposals from "Open Government".

On Labour's election, Chancellor for the Duchy of Lancaster David Clark promised a new White Paper before legislation, which was delayed from July to December that year. "Your Right to Know" proposed a strong freedom of information regime which attracted widespread support, but the Government promised only to publish a draft Bill in 1998 - which in turn was delayed until May 1999.

The Bill that eventually emerged, introduced in December 1999, was considerably weaker than the "Your Right to Know" proposals. It took a year to steer through Parliament, receiving Royal Assent in December 2000.

Controversies

Many proponents of freedom of information regard the 2000 Act as a major disappointment. In publishing its draft Bill in 1999, the Government retreated considerably from the "Your Right to Know" proposals. Most significantly, the notion that most forms of information could only be withheld on the grounds that "substantial harm" would be caused was removed. Many put this down to the transfer of responsibility for freedom of information from the Cabinet Office to the Home Office, and the realisation of other departments of the implications of Dr Clark's proposals.

The range of exemptions proposed and the breadth of grounds on which information might be withheld caused considerable controversy during consultations and the passage of the Bill. While the Government made some concessions to their opponents, it did not give ground on the key principles.

Perhaps the most controversial elements of the Act were the provisions relating to policy formulation and the conduct of public affairs, and the