1.1 The Library Association is the Chartered professional body for librarians and information managers and represents some 26,000 members drawn from the whole spectrum of the economy - including business; industry; the health and voluntary sectors; central and local government and public library services.

Among the purposes of the Association set out in its Royal Charter are:

• To scrutinise any legislation affecting the provision of library and information services and to promote such further legislation as may be considered necessary to this end.

• To promote and encourage the maintenance of adequate and appropriate provision of library and information services of various kinds throughout the United Kingdom, the Channel Islands and the Isle of Man.

1.2 The Library Association attaches a high value to freedom of information which is considered to be a core responsibility of its members. The Association believes that the library and information profession is uniquely placed and skilled to deliver freedom of information.

The Association’s Policy on Information Access states that:

"The right of access to information is essential for a civilised society. If citizens are to exercise their democratic rights, and to make information choices, they must have access to political, social, scientific and economic information. If our culture is to thrive and to grow, people need access to the widest range of ideas, information and images."

The Library Association’s Code of Professional Conduct binds its members to uphold its policy on access to information.

2.1 The Library Association welcomes the Government’s intention to enshrine in law a general right of access to information held by public authorities. We see freedom of information as an essential component of constitutional reform and of the Government’s ‘modernisation’ programme. Access to information is fundamental to a modern democracy.

2.2 We are also pleased to see reflected in statements from the Secretary of State the Government’s determination to bring about the change in culture across the public sector which is an essential pre-requisite for freedom of information.

2.3 We acknowledge that freedom of information legislation must strike a balance between a public right to information and the need to preserve confidentiality in the public interest. However, The Library Association believes that the proposed draft Bill fails to maintain such a balance.

2.4 We believe that the draft Bill is fundamentally weakened by the absence of a binding public interest test. It is a basic tenet of freedom of information that information should be available to the citizen unless it can do harm and that this test of harm should be independently determined.

Without the safeguard of an overriding public interest test the widespread class exemptions are unacceptable.

The draft Bill gives to the Secretary of State the power to regulate the fees to be charged by a public body for complying with a request for information. We are pleased to see that the Secretary of State intends to set an upper limit on such fees and anticipates that, for most applicants, the charge will be at, or below £10. However, no such upper limit will apply to discretionary information issued under Clause 14. Instead, this is to be charged at "a reasonable level in the circumstances". We cannot see any good reason why the same upper limit (10% of the marginal cost of locating and disclosing ...) should not apply to discretionary information, particularly since Clause 12, which allows an authority to claim exemption on the grounds "that the cost of complying with the request would exceed the appropriate limit", would seem to provide a more than adequate safeguard against excessive costs to the authority.

As presently drafted the discretionary fee structure could be used by public authorities to deter applicants from requesting discretionary disclosures or to obstruct a decision notice issued by the Commissioner under Clause 43(7).

3.2 Time for compliance with requests (Clause 10)

The White Paper, Your Right to Know (Cm 3818), proposed a 20 day period for responding to requests for information. This was in line with the existing code of Practice on Access to Government Information. The proposed doubling of this period to 40 days is excessive and longer than the compliance time provided for in any other freedom of information legislation. It would make Britain’s freedom of information regulations the slowest and most unresponsive in the world.

3.3.1 We welcome the provision for public authorities to disclose exempt information at their discretion and the requirement on the public authority to have regard to the public interest in deciding whether to disclose exempt information. However, it is left to the authority to determine the public interest for itself. The Commissioner is expressing prohibited from ordering disclosure on grounds of public interest. She can only ensure that the authority has considered public interest and, if it has not, she can only send the decision back to be reconsidered.

This provision is significantly weaker than that proposed in the White Paper and, indeed, is weaker than the powers of the present Parliamentary Ombudsman under the Code of Practice. It leaves the determination of the public interest solely in the hands of the public authority who might, in a malpractice enquiry for example, be themselves the subject of the enquiry.

Without an overriding public interest test, determined by an independent Commissioner, there will be no-one to hold to account a public authority which misleads the public.

3.3.2 The provisions for Discretionary Disclosure contained in Clause 14, (4a) and Clause 14, (6) are wholly unacceptable. These allow the public authority to refuse to provide information unless it is told the applicant’s reasons for requesting the information and any use which he proposed to make of the information. It also enables the public authority to restrict the use or further disclosure of any information provided.

These provisions are inimical to the core principle of freedom of information - that access to public information is a right, not a privilege which can be withheld.

The White Paper, Your Right to Know, was quite clear that:

"Applicants will not need to demonstrate or state their purpose in applying for information. All requests will be considered equally on their content, not on the presumed intentions of the applicant."

3.3.3 These provisions amount to a gagging order on journalists and other legitimate investigators and may well prove very intimidating to members of the public who might not be able to say what they intend to do with the information until they know what the answer to their question is.

3.3.4 Given the wide range of the proposed exemptions, a very significant number of applications for information are likely to involve discretionary disclosures. We could foresee a situation where all applicants are routinely required to declare their reasons for requesting and their intended use of information and all responses are subject to restrictions on use or disclosure. This does not amount to freedom of information. Once again, the need for an overriding public interest test becomes evident.

3.4.1 It is a basic principle of freedom of information that information should be made available unless it can be demonstrated that disclosure might cause some harm. The decision as to whether disclosure would be harmful should be independent.

The draft Bill fundamentally rejects this principle in allowing entire classes of information to be exempt from disclosure regardless of harm and with no recourse to an independent appeals body.

3.4.2 Moreover, under the terms of the draft Bill the public authority is not even required to disclose whether it holds information or whether information exists.

3.4.3 This approach is reminiscent of the culture of extreme secrecy which has characterised British public life under the Official Secrets Act and is utterly against the spirit of freedom of information.

3.4.4 The introductory notes to the consultation on the draft Bill (Cm 4355) say that:

"The Bill, if enacted will give the public the right to .... information if it is not already published. No longer will information be provided only at the discretion of a public authority".

This is quite misleading. It is precisely the effect of the draft Bill that whole swaths of information will now only be available at the discretion of a public body, under the discretionary disclosure provisions. This discretion will, moreover, be subject to no independent appeals procedure and will be outside of the remit of the Commissioner. This is the inevitable outcome of widespread uses of class exemptions without the essential balance of an independent public interest test.

3.5 Decision making and policy formulation (Clause 28)

3.5.1 The white Paper, Your Right to Know, explicitly rejected the introduction of a class exemption for policy advice and proposed, instead, to subject such material to a harm test to determine disclosure. The stated intention was:

"to expose Government information at all levels to Freedom of Information legislation".

The all-embracing exemptions proposed in Clause 28 of the draft Bill reverse this approach and introduce restrictions which are significantly more stringent even than those operating under the present Code of Practice.

3.5.2 We find it difficult to reconcile what is proposed in the draft Bill with the Government’s policy statements and recent actions in support of open government. Indeed, a number of the Government actions cited by the Home Office, in the consultation document, as evidence of the Government’s commitment to openness would in fact be excluded under the proposed new legislation.

3.6.1 The provisions in this Clause and, similarly, in Clause 19(3), are so widely drawn that they could potentially be used to challenge almost any request for information. Harmless information can be withheld on the grounds that it might prove harmful if it was subsequently combined with other information, whether or not there is any likelihood of that information becoming available to the public. This Clause seems unacceptably wide given the number of sections to which it applies.

3.7.1 The Library Association welcomes the requirement to issue a code of practice to provide guidelines for public authorities. We are pleased to see included in this code the provision of advice by public authorities to people requesting information. We do not underestimate how difficult it can sometimes be for members of the public to secure access to information to which they have a right, particularly when that information is in the keeping of more than one body. We are glad to see the onus placed on public authorities to transfer a request to another authority where the information may be found.

3.7.2 We also particularly welcome the requirement on the Lord Chancellor, in consultation with the Commissioner, to issue a Code of Practice providing guidance on Records Management.

3.7.3 We note that the Code of Practice will only have guideline status but hope that, none-the-less, it will be rigorously promoted.

3.8.1 The Library Association is disappointed that the public interest test proposed in the White paper has become discretionary in the draft Bill. We believe that the commissioner should be given the power to require a public body to disclose discretionary information against a public interest test. This is particularly important since so many enquiries are likely to concern discretionary information given the nature and breadth of the class exemptions.

3.8.2 We are surprised to see, in Clause 44(7), a provision enabling a public body to withhold from the Commissioner information which might reveal evidence of an offence and so expose the authority to legal proceedings. Such a provision is normally intended to protect the individual from the state, here it is used to protect the state from the individual. Since one of the uses of freedom of information is to expose public misconduct such a provision is surely out of place, in this draft Bill.

THE LIBRARY ASSOCIATION
July 1999