Response to the White Paper
Your Right to Know: The Government’s proposals for a Freedom of Information Act

(Response dated 25 February 1998)

The Coalition for Public Information is a membership body which has both corporate and personal members from a wide range of information-related fields, including libraries, publishing, database creation, education, research bodies and the legal profession, as well as statutory, trade and professional bodies.

CoPI is a coalition working to encourage the development of an information and communications infrastructure which will enable full participation in social, economic and democratic activity. Its mission statement reads:

The Coalition for Public Information works to ensure that the developing information and communications infrastructure will empower commerce, communities and individuals so that they can participate fully in social, economic and democratic activity. CoPI aims to influence information-related policies and legislation.

CoPI's overriding concern is with information content provision, in terms of its...

• comprehensiveness,

• navigability,

• retrievability,

• and access for "information haves, have-nots and cannots".

CoPI strongly welcomes the Government’s commitment to a Freedom of Information Act, and all our comments should be seen against this background. Our principal concerns surround the issue of making as wide a range of information available as possible and ensuring that access to such information requires the minimum of knowledge as to how government is structured. In particular we are concerned that:

• mechanisms are established so that requests can be passed freely between agencies to ensure that a request is dealt with fully

• charges are based on the nature of the request irrespective of how many agencies are involved in responding to the request

• great care is taken when dealing with information that is or could be classified as ‘tradeable information’ that its potential as part of a ‘commercial product’ is not used as an excuse for not providing answers at a reasonable cost

• great care is taken when defining ‘commercial confidentiality’ to ensure that this definition does not then become an excuse for suppressing information about unethical commercial behaviour

• Where a request is refused, clear reasons are given

• Steps are taken to ensure that requests for information do not fall into a ‘black hole’ where all ombudsmen (including the Information Commissioner and the Data Protection Registrar) can fail to respond to a query on the grounds that responsibility is outwith their remit. An enquirer should on no account be left unable to obtain an answer to a query within a reasonable time and moreover unable to obtain satisfaction from anyone.

• A mechanism should be established to enable debate with for example academic institutions as to what information should properly be regarded as having historic value.

2.11 This seems to imply that applicants will know ‘the form of the record or information requested’. It is not at all clear, however, that this is realistically the case. How will applicants know? What mechanisms will be provided to enable potential applicants to determine where the information they require is held? Is there an intention that the Information Commissioner will publish some form of directory of information held and by whom? Is there a role for libraries, Citizen’s Advice Bureaux etc to act as gateways to such information. If so, what sort of support will they in turn be given? In essence what is needed are at the very least, the compilation and publication of proper informative indices.

2.12 There are appears to be little reference either in this paragraph or in later sections dealing with the appeals process as to the need to provide clear reasons where a request is refused. This is surely fundamental if applicants are to assess whether or not to appeal such a decision. CoPI would welcome some clear guidelines in the Act requiring those refusing a request to make the grounds of refusal absolutely clear, rather than just referring briefly to one of the seven interests. For example, if information is refused on the grounds that its disclosure would pose a threat to the health of the public, some indication as to why and how this decision has been arrived at should be provided.

2.18 CoPI welcomes the white paper’s commitment to ensuring that a wide range of information is published pro-actively. We hope that mechanisms will be established enabling organisations with an interest in public information to become involved in discussions with information providers covered by the Act, to help identify data and information which might be most appropriately published in this way.

2.21 This paragraph makes no distinction between information relating to an ongoing investigation, and information once an investigation is complete. It would seem on the face of it, that information concerning ongoing investigations would be rather more sensitive than information on completed cases and CoPI hopes that this will be reflected in any guidelines to the police and other relevant organisations as to how to respond to requests under the Act.

2.26 bullet 2 Some time limit should also be applied here, for example refusing to give information because it was due to be published in 6 months might be reasonable, but if it were not to be published for 5 years this would be unreasonable

2.23 - 2.27 Other government proposals, such as government.direct have made it clear that it is unreasonable for the person requiring information to understand the structure of government in order to find what they are looking for. Access mechanisms should be designed so that this also holds true for access to information under FOI. For example, should a recipient of social care need to understand whether such care is being provided by the health service or the local authority before they can access information pertinent to their case? Although such a request might well need to be responded to by both organisations it should still be treated as a single query. Arrangements would need to be made whereby organisations could transfer such requests between them. The situation that clearly needs to be avoided is that the applicant receives no more than an instruction to contact another organisation, or even worse, is led to believe that they have had a full answer, where in fact the answer only represents one organisation’s records.

2.28 - 2.34 A similar issue arises over charging. Is a single request for information which can in fact only be answered fully by more than one organisation to be charged as a single request or as a separate request to each organisation? One can imagine for example that a request relating to food safety might involve not only the new Food Standards Agency, but also MAFF, the Local Authority and even the Health and Safety Executive. It is important that charges should be related to specific requests, rather than the number of organisations involved in its answer, whilst at the same time disallowing requests, such as ‘tell me everything about ....’, where the applicant simply undertaking some sort of information ‘trawl’ of government and its agencies.

It may be that rather than distinguishing charges between private individuals and commercial organisations, the differentiation should be made on the degree of generality of the information required. Thus requests which relate to specific, highly defined, issues might attract a charge of say ,10, where as those relating to wider areas of policy or clearly involving more than one organisation might attract a higher charge.

In considering charging regimes, the position of charities should also be considered. If a two-tier charging regime is operated, then charities should be considered as being in the lower tier to avoid suppressing access to legitimate information on the grounds of cost.

Whatever approach is taken it is important that the cost of acquiring information should not be such that it inhibits legitimate enquiries.

2.38 Great care must be taken over the definition of ‘tradeable information’ to ensure that those making reasonable queries concerning public information are not effectively prevented from obtaining an answer because the information is deemed ‘tradeable’. Once again it might be useful to distinguish between queries relating to one or two records only and those which in effect are seeking to obtain an entire set of data. Furthermore, it may be desirable to differentiate once again between enquiries from private individuals or from charities, and companies seeking to profit from access to such information, say by the provision of ‘value added services’ or in seeking a competitive edge.

CoPI welcomes the reduction in exemptions as proposed in the white paper and the clarification of what can be withheld ‘in the public interest’. CoPI believes that the seven interests governing disclosure are both adequate and reasonable. We particularly welcome the determination that disclosure should be assessed on a ‘contents basis’, rather than withholding records in their entirety.

3.11.4 Commercial Confidentiality

CoPI is concerned that the limits of commercial confidentiality should be carefully defined. Whilst it is clearly right that trade secrets and sensitive intellectual property are properly protected, it is possible to imagine circumstances where disclosure might damage a company, but where the right for the public to information might outweigh this. For example, if a company pollutes a river through carelessness or even willfulness, is it legitimate that information held by the Environment Agency, should be withheld from an applicant affected by the pollution, on the grounds that its disclosure might affect the company’s share price?

Overall, CoPI is strongly supportive of the appeals procedure outlined in the white paper which seems both straightforward and just.

5.19 Third part rights of appeal.

CoPI believes that it would be right to give third parties the right to appeal against disclosure which they believe would cause ‘substantial harm’ to their interests. However, CoPI has three questions:

• How are third parties to be notified that information concerning them has been requested?

• If a third party takes the appeals process through the complete sequence outlined in the white paper, it is possible that all parties could be involved in considerable costs. How and under what circumstances could these be recovered?

• Will third parties be able by unreasonable use of the appeals procedure be able to frustrate legitimate applications for information as a result of escalating costs on the applicant?

CoPI welcomes the proposals to ensure that departments should set records management standards. Indeed, this should be the case for all organisations covered by the Act. Whilst we note that these should have regard to best practice guidance drawn up by the Public Records Office, we feel that there should be a wider debate on how the historic value of a record is to be determined? Should, for example, individual citizens, charities, academic or indeed private sector organisations be able to request that certain records or data sets be classified as historic? It is important that mechanisms should be established not just to provide access to what is available, but also to enable debate about what should be made available.

CoPI strongly welcomes the recognition in the white paper that a cultural change will need to take place within government departments and other public authorities for the Act to truly succeed. Our discussions with civil servants over government.direct raised a number of areas where we felt civil servants were being unduly protective of the information they were being expected to publish in this way and that there were departmental boundaries preventing the pooling and amalgamation of data, in areas which to the public would seem to be strongly linked.

It is also important to recognise that there will need to be a similar shift in culture amongst the population at large to take full advantage of the government’s initiative. This in turn implies the need for some sort of awareness raising campaign to make the public aware of what is available, but more importantly to promote the advantages to the public that a Freedom of Information Act presents. A How to use FOI guide of itself is unlikely to achieve the desired result.

Not only will the Information Officer need a ‘central point’ to which to turn to ease communication and liaison with the many public authorities covered by the Act, but so will the public need contact points to similarly guide them as to where information may be held. We have already discussed the need for this in our response to Chapter 2.

CoPI would welcome the opportunity to be involved in discussions as to how public access to information covered by the might be promoted and coordinated.

In closing CoPI would like to express once more its strong support for the proposed Freedom of Information Act. Furthermore, we wish to express our interest in becoming involved in any consultations or other dialogues concerning ways to promote the aims of the act to the public. In particular we are concerned to ensure that access routes for the public are as straightforward as possible, requiring only a minimum understanding of the mechanisms and structures of government in order to obtain the information required.