Freedom of Information Bill 1999

Comments from the National Union of Journalists

Contents

• 1 Background
• 2 The Right to Know White Paper
• 3 From the White Paper to the Bill
• 4 The Freedom of Information Bill
• 5 Press Responses to the Bill
• 6 The Media, Freedom of Information and Democracy
• Apendix A: Comments from UK journalists/authors on the Freedom of Information Bill
• Appendix B: Comparative experiences: Journalists and the US FoI Act
• Appendix C: Freedom of Information in Ireland

1 Background

1.1

The National Union of Journalists (NUJ) represents 30,000 journalists working in all media in the UK and Ireland. The union has consistently supported demands for a robust Freedom of Information Act in Britain, and in Ireland played a key role, through the Let in the Light campaign, in shaping the Freedom of Information Act passed in April 1997. [guide] We agree with the Home Office statement in the Consultation on the Draft Document, Part 1, that freedom of information legislation is "an essential step towards greater openness in the public sector. But legislation is not sufficient in itself: there needs to be a change of culture within the public sector and the government is determined to bring about this change." {paragraph 1.4}

However we cannot agree with the assertion that "the effect of Freedom of Information legislation will be that, for the first time, everyone will have the right of access to information held by bodies across the public sector." {1.2} Unfortunately the draft Bill is a retreat from the bold proposals contained in the White Paper, Your Right to Know, December 1997. For example, the impact of the extension of the list of exemptions, and the reduced powers of the Freedom of Information Commissioner will curtail and restrict access to information. Far from signalling a clear commitment to the principles of the right to know and openness, the Bill sustains secrecy across broad areas of political, commercial and economic activity, and limits access to information from a number of public and regulatory bodies. We document and support our views for these assertions on the draft Bill later in this submission.

1.2

The draft Bill is cause for a deeper disappointment because, after the experiences of the Conservative governments between 1979-97, when freedom of information was a marginal or non-existent commitment, Tony Blair signalled clearly in his speech at the Freedom of Information awards in March 1996 an unequivocal commitment to radical legislation. He said:

What is needed is a change in culture and a statutory obligation to make it a duty to release information to the people who elect the government. There is still far too much addiction to secrecy and a wish to conduct government business behind closed doors.

1.3

Indeed, the range of Labour election manifesto commitments [see CFoI summary], including incorporating the European Convention on Human Rights, stood in stark contrast with the previous Conservative government policy initiatives. There were powerful lessons to be learnt from events under the governments of both Margaret Thatcher and John Major which also amply demonstrated the urgent need for freedom of information legislation.

These were the years which saw the international campaign to prevent publication of Peter Wright's Spycatcher and the use of the courts to prevent English newspapers serialising the book; the prosecutions of Sarah Tisdall and Clive Ponting; government intervention around the television programmes Zircon, Real Lives and Death on the Rock; and other actions by the Conservative government to suppress the dissemination of information. In the late 1980s a measure of public concern about the government's stance on civil liberties and constitutional reform can be gauged by the following:

• the establishment of Charter 88;
• the devotion of the September 1988 edition of Index on Censorship to liberty in Britain;
• the publication by Liberty in January 1989 of Peter Thornton's Decade of Decline: Civil Liberties in the Thatcher Years; and
• the publication by the International Federation of Journalists in April 1989 of Press Freedom Under Attack in Britain, a special report on the impact of official secrecy and government intervention on the media.

As two experts in constitutional law commented:

Whilst other nations wrestled with the complex problems of a modern democracy, the questions of press ownership, the funding of political parties, wire-tapping, privacy, freedom of information, the control of the security services, and so on, Britain has been content to stand aside altogether or to legislate for continuing trust and deference.

K D Ewing and C A Gearty
Freedom Under Thatcher, OUP, 1990, p3

1.4

The Conservative initiative by John Major introducing the Citizens' Charter illustrated one tardy approach to giving people information. The intention of the Charter was to provide a series of measures to give people better public services, and compensation if those services were not delivered. However there was an explicit rejection of any public right of access to official information.

In July 1993 Mark Fisher MP's Right to Know Bill [CfoI summary], which had strong all-party support and won an unopposed second reading, was "talked out". Subsequently the government introduced its Code of Practice ("the Open Government Code") in 1994. While this fell far short of the proposals in the Right to Know Bill, William Waldegrave, the Minister for Open Government, claimed the code would help to overturn the culture of secrecy within government. The code did make some real concessions, but sweeping exemptions weakened its effectiveness.

The code has been used to gain access to information by journalists, and now in key areas the Freedom of Information Bill is weaker than the Conservative Code. For example, the code requires central government bodies to release information on request, subject to various exemptions. Complaints about non-compliance are investigated by the Parliamentary Ombudsman. One criticism of the Code was that it only required authorities to release "information" rather than actual documents. However the first ruling by the Parliamentary Ombudsman said unless information in a document was exempt, he would expect the document to be released.

A parallel Code applies to the NHS, with an NHS Ombudsman.

However the Conservative government of 1992-97 was fatally damaged by a series of scandals, sleaze, the arms-to-Iraq scandal and the BSE crisis, so that public trust and confidence in the government withered away. Indeed these last two high-profile cases - one the subject of the Scott report, and the other the subject of the continuing BSE public inquiry - demonstrated how politicians and officials took decisions safe in the knowledge they could shelter behind the walls of official secrecy. It was precisely because of Labour's commitments to constitutional reforms and democratic rights that electors had high hopes of a new start in May 1997 after the bleak Conservative record on these matters.

2 The Right to Know White Paper

2.1

There was a strong sense of disappointment when Tony Blair's pledge to enact Freedom of Information legislation in the government's first parliamentary session was not carried out. Political commentators had been told that it would be included because it was "a low cost signal of new Labour politics in action." {Blair delays open government, Anthony Bevins/Colin Brown, The Independent, May 8 1997} However civil servants advised ministers that legislation would take time and argued for a White Paper outlining plans to be enacted in 1999.

At the time people were disappointed and slightly puzzled by this news because, as the Constitutional Unit pointed out in an October 1996 report:

Of all the possible constitutional reforms, Freedom of Information is the one in the most advanced state of readiness. Good draft bills exist, including Mark Fisher's Right to Know Bill of 1993.

Des Wilson, one of the founders of the Campaign for Freedom of Information, thought the reason for the delay was "disingenuous nonsense" and described the draft Right to Know Bill as "immensely well thought out...and...drafted by people who know how to do it." {New Statesman, July 25 1997}

2.2

However the publication of the White Paper, Your Right to Know {Cmd 3818}, in December 1997, was greeted positively by a range of organisations, politicians and the media, too. Peter Riddell in The Times {December 12 1997} praised its radical proposals whilst a Guardian editorial the same day trumpeted "a new age of information freedom" and chided "those cynics who believed Labour's commitment to openness would evaporate once in power."

2.3

It is important to stress that the proposals in the White Paper received plaudits, within Britain and internationally. The proposals went much further than the existing Code of Practice in providing access to documents, not just information. Also the scope involved the whole of the public sector, including the NHS, schools, the armed forces, public service broadcasters, privatised utilities and private bodies carrying out statutory duties on behalf of government.

The role of the new Commissioner was clear, and the person appointed would have access to all documents, including Cabinet and Cabinet Committee papers, and have the power to order disclosure of information, and apply for a warrant to enter or search premises and remove documents if there was suspicion that papers were being withheld.

Decisions on disclosure would be subjected to a test of "substantial harm", for which the White Paper indicated seven criteria:

1. national security, defence and international relations
2. law enforcement
3. personal privacy
4. commercial confidentiality
5. the safety of the individual, the public and the environment
6. information supplied in confidence
7. the integrity of the decision-making and policy advice processes in government

Exclusions from the proposed new laws included the security and intelligence service, papers relating to criminal prosecutions, and government personnel files.

2.4

Maurice Frankel, Director of the Campaign for Freedom of Information (CFoI) suggested the proposals "could lead to an outstanding freedom of information act that in many respects is better than most overseas FoI laws." The only reservations that the CFoI had about the White Paper concerned:

• high fees would act as an obstacle to access
• legislation should apply to both the administrative and law
• enforcement facilities of the police
• the security and intelligence services were not subject to the Act.
• The CIA is subject to the US FoI act, and the equivalent Canadian and New Zealand services were covered by their countries' laws too.

3 From the White Paper to the Bill

3.1

In the period between the White Paper and July 1998 we now know that an alliance of ministers, backed by their permanent secretaries, sought to challenge and emasculate both the scope of the proposals and the powers of the Information commissioner in the White Paper. Issues about the cost of implementation were also raised. The Home Secretary played a key role in this opposition.

In the July 1998 reshuffle David Clark, who had played an important role with the Lord Chancellor in shaping the White Paper, was sacked and the freedom of information brief passed to the Home Office. The process of cutting out key areas of the White Paper began, and again the role of the Home Secretary was central. Ministers supporting him in opposing the White Paper's proposals for access to government documents, and the need for secrecy in the Ministry of Defence were John Spellar, junior defence minister, and John Reid, defence minister and transport minister (who was also alarmed at the cost of FoI)

We would also point out that Sir Richard Wilson, permanent secretary at the Home Office, took the view that too much openness would wreck the Whitehall machine, and he subsequently moved to the post of Cabinet Secretary. According to the Guardian columnist Hugo Young, a key exemption clause in the Bill, 28(1)(a), was not in the next-to-final draft of the Bill. The clause deals with "the formulation or development of government policy" and Young asserted that the clause was inserted "by the minions at No 10". {It was Blair who sabotaged freedom of information, The Guardian, June 22 1999}.

3.2

By the time the Bill was published in May 1999 Labour had been in power for two years. One of the arguments used for early legislation by campaigners for freedom of information is a simple one: they fear that the longer governments are in office the less likely they are to be amenable to openness because crises and controversies, and blunders in policy development all take their toll. The comfort of the secrecy blanket becomes ever more attractive. We think that there is compelling evidence, based on the tardy progress of the legislation, and the stripping away of those elements in the White Paper which gave real powers to get access to information, that this fear has been justified.

At this point we would like to pay tribute to the highly effective work of the CFoI which has alerted journalists and interested organisations to the pressures on, and retreats from, Labour's commitments to an FoI Act. The CFoI and Charter 88 have voiced these concerns and mounted a joint campaign to get basic changes to the Bill. The concerns the CFoI expressed were also taken up very strongly and publicised by The Guardian, which ran a informative and effective campaign to alert its readers to the issues and to argue for changes to key clauses in the Bill.

3.3

We know that there is a view among some Labour ministers that freedom of information legislation is not a popular or vote-winning issue. Indeed, there are even reports that the FoI Bill will not be in this Autumn's Queen's Speech: "boring" bills will be dropped in favour of those which can help Labour win the next election. We think that the contents of the Bill, and the critical reception which it has had, both in the media and amongst a diverse range of individuals and organisations, should serve both to rebut such notions, but also act as a warning of the potential damage it could do to Labour electorally unless there are basic changes made to the Bill.

4 The Freedom of Information Bill

4.1

We think there is a clear gap between the claims made for the Freedom of Information Bill and its substance. Introducing the Bill in the Commons on May 24 1999 the Home Secretary said: "The proposals will benefit everyone and provide access to the sort of information that people really want to know." Speaking at the Freedom of Information awards on June 7 1999 he asserted the legislation was "a radical and reforming measure, which will have a profound effect on the way public services will operate." We fundamentally disagree with these assertions. It is a retrograde Bill in a number of crucial areas because it abandons the basic principle and rationale for Freedom of Information legislation that information should be available to the public unless there is clear evidence that disclosure would be damaging. The Bill moves from the "substantial harm" test in the White paper to a lower test of "prejudice" and allows wide classes of information to be withheld without consideration of even this lower test of prejudice.

4.2

Some clauses, if they are in the Act, will give this Bill a dubious distinction that will set it apart from any other Freedom of Information Act in the world. Journalists, researchers and health and safety experts are shocked, for example, by the exemption which means that no information obtained during an accident investigation would be made available. {Clause 25 (2) (a) (iii)}. Unsafe industrial premises are protected from scrutiny {Clause 25 (2) (a) (vii) and (viii)}.

In the NUJ's view these exemptions are inexplicable. Only after some major disasters did we learn that the authorities knew there was a problem, but the public was unaware. After the 1987 fire at King's Cross station, which killed 31 people, the official inquiry reported:

Many of the shortcomings had in fact been identified before by the internal inquiries into escalator fires. They were also highlighted in reports by the Fire Brigade, police, and Railway Fire Prevention and Fire Safety Standards Committee.

We cannot say whether openness would have prevented this tragedy, but if the public, safety campaigners and journalists had known about the potential dangers they could have demanded improvements.

4.3

Concealment rather than disclosure also applies to regulatory bodies which play an ever more important role in our lives. They will not have to reveal anything that they have obtained in an investigation so that we will have no right to see information across huge areas of regulatory activity including food safety, race and sex discrimination, planning and agricultural subsidies. This exclusion flies in the face of the point made by Tony Blair at the March 1996 FoI awards:

When a health scare like BSE occurs, the public want to know the facts, people want to know what the scientific advice is in full, and they need to be sure that the public interest has always come first. They want to know if there was any relaxation of regulations resulting in public safety being compromised...The only way to begin to restore people's confidence is therefore to be completely open about what the risks are.

4.4

The same exclusion by regulatory authorities also applies to the police, in spite of the recommendation of the Macpherson report into the Stephen Lawrence murder inquiry that the Police Service "should be open to the full provisions of a Freedom of Information Act". The Association of Chief Police Officers has welcomed the draft Bill arguing that "trust can only be maintained and the information only put to the greatest effect where there is confidentiality." Information obtained during police investigations will not be available as a right, and indeed could lead to the situation that the police release less information as a result.

4.5

The culture of secrecy, which this legislation was meant to dissipate, is buttressed by a key clause that exempts "the formulation or development of government policy." {Clause 28 (1) (a)}. This exemption is stringent, covering not only anything relating to policy but also factual information, surveys, descriptions of current practice, and so on.

We commented earlier on the widespread distrust which Conservative governments from 1979-1997 created as a result of their determination to favour official secrecy over openness and access to information. Clause 28 (1) (a) is particularly damaging at a time when policies are being formulated on controversial issues like genetically modified food. Surely the lesson from the BSE crisis is that in a crucial area involving public confidence on heath and nutrition the arguments and counter-arguments about the safety or otherwise of GM foods should be accessible for journalists to analyse and report, and the rationale for particular government decisions and policies on this issue as well.

Broader issues arise here, in terms of access to, and influence over ministers, in policy making. Transnational corporations like Monsanto have invested heavily in lobbying and organising PR campaigns to promote the benefits and advantages of GM foods. There have been meetings with ministers too, but under the Bill's punitive limitations, the contents of such discussions would remain secret.

Provisions within the Bill will allow people to get information about local services in education, health, and so on, but what about policy decisions affecting people over important services like the issuing of passports? Surely, the disruption and delay caused by the backlog of passport applications raises issues of precisely who is responsible: ministers, the agency or the company which supplied the equipment?

Questions like this are of legitimate concern to the media, and as the Guardian journalist David Hencke has demonstrated, he can apply under the Conservative Code of Access for information to help him find answers but "the draft Bill allows these kinds of information we want about the passport debacle to be 'exempted' from the citizen's right to know." {Pointing the finger of blame, The Guardian, July 6 1999}.

4.6

The crucial issue of the Information Commissioner being able to order disclosure of documents on public interest grounds has also been weakened considerably. The Commissioner will be prohibited from ordering disclosure, and if an authority does not provide information the Commissioner will only be able to rebuke it.

4.7

The draft Bill also extends the time given for a response to an request for information from 20 days in the White Paper to 40 days. We can see no sound reason for this extension and would point to the practice in other countries where 20 days or even less are allowed to comply with a request. Obviously for journalists the longer the gap between request and response, the less likely will it be a useful information source.

4.8

There is also great weight placed on the discretionary release of information by authorities {Clause 14 (2)}. This is strengthened by the Bill allowing the authority to insist on knowing why the applicant wants the information and what he or she intends to do with it, or to release information on condition the applicant agrees not to make it public {Clauses 14 (4) (b) and 14 (6)}.

The NUJ protests at these clauses. They introduce arbitrary protection to authorities, and stand in stark contrast to what freedom of information legislation should be about. Instead of the right of individuals or organisations to have access to information, arbitrary hurdles and obstacles are created, and authorities given powerful weapons to block requests.

4.9

Finally, even with all of these powerful constraints on the right to know, the Bill allows the Home Secretary to create new exemptions by Parliamentary Order. This, combined with the much weaker provisions we have outlined above, will make it much easier to withhold information on the grounds of commercial confidentiality, or because the information was given to government in confidence.

4.10

There are also omissions in the Bill. We would point particularly to one "user-unfriendly" aspect which is that it has no statutory duty in it to help requesters to find the information they want. And when information is denied, the Bill makes no provision to explain to the requester why information has been denied.

5 Press Responses to the Bill

5.1

What was striking about the press reactions to the Bill was the level of negative comment. On the day after the Home Secretary introduced the Bill press reaction was unremittingly hostile; headlines and leaders described it as "feeble", "toothless", "deeply flawed", "weasel words" and "disappointing". A cartoon in The Independent had the Home Secretary stumbling in a darkened vault holding a key which he uses to open a lock to let in a sliver of light, with the caption, "Whaddya mean you expected it to unlock more?" Apart from leaders in The Express and The Times which gave the Bill a cautious welcome, the national press on May 25 gave an unequivocal thumb- down to the Bill. However The Times leader was perceptive about the spirit and intent of the Bill:

This Bill is clearly aimed at patients and pupils rather than litigants and political activists. The institutions which will face the closest examination are schools and hospitals to whom fewer of the exemptions are likely to apply. On the other hand, any government information which falls in to the potentially broad band of policy advice can remain under lock and key, regardless of whether it will affect the workings of government.

Anthony Bevins in The Express asserted:

Information is power, which is why Ministers and civil servants are so reluctant to part with it, and yesterday's draft Bill gave pitiful little indication of a change of culture.

He concluded his scathing assessment of the Bill with a rallying cry:

But the dam of secrecy is cracking. With little help from Mr Straw, it will take that much longer for the pressure of public demand, from citizen, Parliament and media, to bust it wide open.

The response of The Economist {29 May} was withering. It described the Bill as making " a mockery of the idea of more open government" and "riddled with loopholes which would give Britain one of the feeblest information laws in the world." The article also picked out the fact that the Bill will impose new duties of disclosure on hospitals, schools and many other public bodies which deal with the public on a day-to-day basis: "This may produce more openness at a local level. But swathes of central government - and most important of all, ministers and the mandarins in Whitehall - will be largely exempt."

6 The Media, Freedom of Information and Democracy

6.1

When the Scott Report into the Arms-to-Iraq scandal was published in February 1996 it revealed a sorry picture of the deception of Parliament by the minister, William Waldegrave and key officials, and exposed something of the murky world of the arms trade. Indeed if there were ever any doubts about the dangers of secret government the Scott Report dispelled them.

But after more than two years of a Labour government, the Bill seems aimed at retaining rather than dismantling the structures which sustain the culture of secrecy. In this final section of our response we return to the scope and purpose of freedom of information legislation, and its place alongside other structures to promote openness and accountability in a democratic society.

6.2

Our central concerns as a union are with the professional activities of our members, and the ways in which government policies, and the legal framework within which journalists operate, may inhibit or assist their work. Freedom of information legislation can impact in different ways on their activity, and robust legislation would have important and positive implications for our members' work. However we do not just take a particular focus on this in trade union terms - there are broader and important issues of the rights of citizens, too.

Clearly, journalists working to the deadlines of daily or even weekly newspapers or for the broadcast media would not be able to gain access to information for items they were reporting on. The main value would be for journalists and authors engaged in medium or long-term investigations, or for journalists working within particular specialist areas. Here, the value of a relatively speedy system of gaining access to information is much more apparent, with researchers being gradually able to build up information over months or years.

Our interviews with a number of journalists make it clear that the present exemptions, the limited powers of the Commissioner, the extended time to respond to requests for information, and the philosophy which seems to be at the heart of the Bill of seeing those seeking access to information in a negative or suspicious light all lead them to highly critical assessments of the Bill's value.

6.3

Macaulay in 1828 suggested an important link between the press and political democracy:

The gallery in which the reporters sit has become a fourth estate of the realm. The publication of the debates, a practice which seemed full of danger to the great safeguards of public liberty, is now regarded by many persons as a safeguard tantamount, and more than tantamount, to all the rest together.

The link between the press and politics remains a powerful one, but it is also true that changes in the organisation and ownership of the press, and the priorities given to reporting politics have changed. Some would argue that the press has retreated from the role which Macaulay assigned it of a watchdog over government. The reasons for this should concern both journalists and politicians, but few newspapers now have journalists engaged in the kind of in-depth investigative journalism which frees them from the tyranny of daily deadlines. And as newspapers and television stations become part of more diverse media empires, judgements are made about where to place resources which may have more to do with the bottom line than giving readers or viewers information which they need to function as citizens. Within the ITV system we have seen the end of current affairs programmes like World in Action, First Tuesday and This Week, for example.

The NUJ believes that a diverse, critical questioning media is an essential element within a democratic society. But we also note pressures on the media which developed under Conservative governments, and have gained pace under the Labour government to use techniques of news management and "spin" to control the media agenda when reporting politics. The Government Information Service has also been harnessed to take a more active role in the presentation of government policy.

It seems to the NUJ that those ministers, MPs, officials and advisers who enthusiastically espouse the merits of news management are also those most hostile to freedom of information legislation which would give journalists, researchers and campaigning groups access to information, rather than relying on information solely from government spokespersons.

Of course a robust Freedom of Information Act, rather than the emasculated Bill on offer, would not immediately remedy the deep-seated and ingrained habits of secrecy at the heart of government in the United Kingdom, but it would begin to enhance the quality of public debate and open up the process of decision making. It would be a powerful signal from the government about its vision of a democratic Britain at the beginning of the 21st century.

The NUJ takes the view that if the Bill, even with minor improvements, forms part of the government's legislative programme, it will be a fitting target for opprobrium. We hope the Home Secretary will take note our criticisms and urge him to radically redraft the Bill.

Appendix A:

Comments from UK journalists/authors on the Freedom of Information Bill

Appendix B:

Comparative experiences: Journalists and the US FoI Act

On November 11 1997, in anticipation of the proposed UK Freedom of Information White Paper, a joint UK/US Editors' Forum was held at the Stationers Hall, London. At the conference Jane Kirtley, executive director of the Washington-based Reporters' Committee for Freedom of the Press provided some useful insights into the operation of the US Act.

The highest usage by a particular group of the Act was by pharmaceutical companies seeking to gain information about other competitors' products; journalists as group made only 10% of the applications under the FoI Act. However as a report by her organisation, How To Use The Federal FoI Act, demonstrated, journalists and scholars have used the Act to investigate a variety of news stories and historical events. Issues reporters have uncovered include wasteful government spending, victims of government radiation experiments, the analysis Occupational Safety and Health Administration databases to identify the most dangerous work places in the country, FBI harassment of civil rights leaders, sanitary conditions in food processing plants, and many other examples. "The possibilities provided by the Act are endless. All that is required is that you use it," the report asserts.

Other contributors at the joint US/UK editors event gave more cautious endorsements. Matthew V Storin, editor of The Boston Globe, thought the 1966 FoI Act was "just another tool in the practice of journalism in the USA", but warned of the danger of reporters getting trapped into a battle with the Act to get information, and the danger of this becoming a substitute for "good old-fashioned shoe leather reporting". He pointed to a mixed pattern of success and failure in requesting information: documents dealing with Medicaid fraud were refused because the case was under investigation; requests for details of accidents on naval flights were not responded to for one year, and then turned down as the information was classified - reporters went to other sources to get the information for the story. However the clear message from US editors was that the existence of the Act, despite numerous exemptions, was an important and valuable source of information.

Appendix C:

Freedom of Information in Ireland

An Irish Freedom of Information Act was passed in April 1997. In contrast to some of the key aspects of the UK Freedom of Information Bill it has a number of positive features, including the power of the Information Commissioner to order disclosure, and the requirement for government to show that the disclosure of policy advice would cause harm.

Journalists made 17% of the 3,000 applications for information in the first year, and the results have been positive. An RTE journalist, Charlie Bird, used the Act to obtain correspondence which revealed there had been political interference in the promotion of diplomats. Other stories as a result of the Act have dealt with the expenses of ministers, how much TDs (MPs) spent of foreign trips. The alleged doctoring of a critical consultancy report on rail safety was also disclosed.