A right to know - rights of access under FOI
The scope of the Act - who will it cover?
2.1 We believe that Freedom of Information, as a fundamental element of our policy to modernise and open up government, should have very wide application. The Freedom of Information Act will apply across the public sector as a whole, at national, regional and local level. It will apply throughout the United Kingdom although it will be for the Scottish Parliament to determine the approach of the Scottish executive and other Scottish public bodies to openness and freedom of information within devolved areas in which it is competent to enact primary legislation. In Wales, the Act will cover the National Assembly for Wales (as a Crown body) and other public authorities.
2.2 The Act will have a far broader scope than the existing central government Code of Practice on Access to Government Information, or other openness measures in government. It will cover:
- Government Departments, including non-Ministerial Departments, and their Executive Agencies;
- Nationalised industries, public corporations, and all the 1,200 Non-Departmental Public Bodies ("Quangos"). Examples range from the Equal Opportunities Commission and the UK Atomic Energy Authority to the Royal Botanic Gardens and the Northern Lighthouse Board;
- the National Health Service;
- administrative functions of the Courts and tribunals;
- administrative functions of the Police and Police Authorities;
- the Armed Forces;
- Local Authorities;
- Local Public Bodies, for example Registered Social Landlords and Training and Enterprise Councils;
- Schools, Further Education Colleges and Universities;
- the Public Service Broadcasters (for example the BBC, Channel Four, the Radio Authority);
- private organisations insofar as they carry out statutory functions;
- the privatised utilities.
In addition, FOI provisions will be applied to information relating to services performed for public authorities under contract. Appropriate requirements will be included in the individual contracts between public authorities and contractors.
Who will the Act not cover?
2.3 A very few public bodies, because of the nature of their role, will be completely excluded from the Act. Parliament, whose deliberations are already open and on the public record, will be excluded. We are clear that the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and the Special Forces (SAS and SBS) could not carry out their duties effectively in the interests of the nation if their operations and activities were subject to freedom of information legislation. These organisations, and the information that they provide, will be excluded from the Act, as will information about these organisations held by other public authorities.
2.4 The Act will contain a list, showing which public authorities and other organisations are covered, so that there will be no ambiguity about which bodies are included and which are not.[3] This list will be published as part of the draft Bill next year. Such a list will need to be amended from time to time as public bodies are created or wound up, or public functions are carried out by different bodies. The Act will provide for this with an Order-making power to allow the list to be kept up to date.
What is the Freedom of Information Act intended to do?
2.5 The objective of the Act is to help open up public authorities and other organisations which carry out public functions. First, it will empower people, giving everyone a right of access to the information that they want to see. Secondly, it will place statutory duties on the bodies covered by the Act to make certain information publicly available as a matter of course.
Your Right of Access
2.6 This is at the heart of the Act. The Government sees it as taking the general form of a right, exercisable by any individual, company or other body to records or information of any date held by the public authority concerned in connection with its public functions.
"... by any individual, company or other body"
2.7 Anybody can apply for information. Applicants will not need to demonstrate or state their purpose in applying for information. All requests will be considered equally on their contents, not on the stated or presumed intentions of the applicant.
"... to records or information ..."
2.8 The Code of Practice on Access to Government Information, introduced by the last Administration in 1994, provides access to information, but not to actual records or documents. This is in contrast to most statutory FOI regimes (see Annex A). The Code's approach has been frequently criticised as unnecessarily secretive because it offers potential scope for "doctoring" the material; and as cumbersome because in many cases disclosure of actual documents is the simplest and quickest route for both Department and enquirer.
2.9 Another key issue is the changing nature of information creation and storage. In the USA for example, updating the 1966 legislation has recently been necessary to ensure that FOI covered computer disks and other IT storage methods.
2.10 We believe that, for the Act to be fully effective, the access right should be capable of a broad and flexible application in this respect. It should cover both records and information. And the term "records" should cover all forms of recorded information including electronic records, tape, film and so on.
2.11 The flexibility in these arrangements will help both the applicant and the public authority. The applicant will be able to specify the form of the record or information requested. The authority would be required, in the first instance, to release disclosable records or information in the form requested. But it too will have flexibility to meet the request in a different form if this would be more in keeping with the requirements of the Act or if exact compliance would involve disproportionate cost or effort (see "Gateways to the Act", paragraphs 2.23 - 2.27). Or it could decide to make a charge reflecting the cost of meeting the application if necessary (see "Who Pays?", paragraphs 2.28 - 2.34).
2.12 A refusal to supply information or records in the form requested would be appealable to the Information Commissioner (Chapter 5), who would need to take into account factors such as the technical feasibility of meeting the request, and other discretionary cost thresholds relating to the provision of information, such as that for answering Parliamentary Questions. If problems of disproportionate cost look likely to limit significantly the extent to which individual public authorities are able to provide information under the Act, there will be scope for them to agree procedures with the Information Commissioner to provide it in a more cost-effective form.
2.13 The access right will apply to records of any date, regardless of whether they were created before or after the Act comes into force. There would be only very limited exceptions to this, for example where the new Freedom of Information Act incorporates and supersedes certain existing statutory access rights which themselves only give access to records after a specified date.
2.14 Eventually, records held by many public authorities reach an age - normally 30 years - where they become subject to the criteria governing historical records. Chapter 6 of this White Paper sets out our proposals for integrating the access rights to both current and historical records under the FOI Act.
"... held by the public authority concerned...."
2. 15 The access right will apply to recorded information that the public authority concerned already holds. It does not have to have originated this itself. If an authority does not hold the information requested, it could choose to obtain it for the applicant, but would not be legally obliged to do so.
"... in connection with its public functions. ..."
2. 16 Many public authorities within the scope of the Act will hold records of various sorts which do not relate directly to their public functions. For example, individual authorities may hold private or personal records. Political and constituency papers may be held in the Private Offices of Government Ministers alongside official records. Commercial organisations carrying out public functions will, naturally, hold many other records relating to their separate commercial operations. Such records would not be available under the Act.
Duties to publish information
2.17 A Freedom of Information Act must be a catalyst for changes in the way that public authorities approach openness. In this respect, sensible legislation should have a far greater impact than any voluntary or discretionary system. Experience overseas consistently shows the importance of changing the culture through requiring "active" disclosure, so that public authorities get used to making information publicly available in the normal course of their activities. This helps ensure that FOI does not simply become a potentially confrontational arrangement under which nothing is released unless someone has specifically asked for it.
2.18 We believe it is important that further impetus is given to the pro-active release of information. So, the Act will impose duties upon public authorities to make certain information publicly available, as a matter of course. These requirements will be consistent with the other provisions of the Act - including its harm and public interest tests (see Chapter 3). They will be broadly along the lines of those in the Code of Practice, namely:
- facts and analysis which the Government considers important in framing major policy proposals and decisions;
- explanatory material on dealings with the public;
- reasons for administrative decisions to those affected by them;
- operational information about how public services are run, how much they cost, targets set, expected standards and results, and complaints procedures.
[3]In the rest of the Paper, we use the term 'public authorities' as the generic term to cover all the bodies and organisations included in paragraph 2.2
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