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UK publishes Freedom of Information Draft Bill [1999] PLBIRp 27; (1999) 49 Privacy Laws and Business International Report 6

UK publishes Freedom of Information Draft Bill

THE FREEDOM OF INFORMATION Draft Bill extends the access rights to personal data provided by the Data Protection Act 1998. The UK Government proposes that the Data Protection Registrar, to be named Information Commissioner, will have dual responsibility for data protection and freedom of information issues to ensure proper balance.

The Draft Bill, published on 24th May, proposes a general right of access to information held by public authorities. The law would also apply to those providing services to public authorities. It is suggested that the access rights under the UK Freedom of Information (FOI) legislation would apply to information recorded in any form. This will include computer and manual files, tape and film.

Public authorities to which the Bill will apply, are currently proposed to be the following:

• Government departments,

• The National Assembly for Wales

• The Armed Forces

• The National Health Service (NHS)

• Local government

• Educational bodies

• The police.

The Government's White Paper, published in December 1997 (PL&B Feb '98, p. 22), originally suggested that privatised utilities, broadcasters and administrative functions of the Courts should also be included.

WIDE EXEMPTIONS PROPOSED

The Draft Bill includes numerous exemptions, such as all security services. Also exempt is information intended for future publication. In other words, documents that include planning information could not be accessed.

The more usual exemptions on matters that deal with national security, international relations and defence are also included.

Information that is held by a public authority for the purposes of criminal investigations and proceedings is also exempt.

However, the exemption on information relating to the development of government policy has the widest implications. The range of exemptions has been criticised, amongst others, by the Campaign for Freedom of Information. "This is a very poor bill," said the Campaign's Director, Maurice Frankel, at the Privacy Laws & Business 12th Annual International Conference in Cambridge on 30th June. "In key areas, the Bill is weaker than the openness code introduced in 1994 by the Conservatives," he said. Mr Frankel also stressed that the exemption for trade secrets can be applied widely, as there is no definition of trade secrets in UK law.

IMPLICATIONS FOR DATA PROTECTION

The access rights proposed in the Draft FOI Bill may, in certain cases, clash with the provisions of the 1998 Data Protection Act. The two sides of dealing with personal information have to be balanced; a right to information can simultaneously jeopardise someone else's privacy. In order to ensure that this balancing test will be conducted, the Government proposes that the Data Protection Registrar will also enforce the FOI regime.

The UK Data Protection Registrar, Elizabeth France, has welcomed this proposal. "This approach recognises the relationship between the two [regimes] and will provide individuals, applicants and public authorities with a single source of information and advice on information issues," she stated in a press release.

TWO APPROACHES TO RELEASING PERSONAL DATA

The Draft Bill divides personal data into two categories. First of all, if information relates to the individual who is making the request, it will be treated as a subject access request under the Data Protection Act 1998. If, however, the information includes personal data of a third person, the information cannot be released if the disclosure would breach any of the data protection principles, or would cause damage or distress to the data subject. Also, information is always exempt if it has been provided in confidence.

The Data Protection Act 1998 will regulate third party access to personal information (Part II, clause 7(4)). In order for the data controller to be able, in most cases, to disclose third party information under the Data Protection Act, the other individual needs to consent to the disclosure, or the identifying information needs to be omitted.

The Data Protection Registrar has pointed out that the issue of third party access needs further attention in the Draft FOI Bill. "It is right that the Data Protection Act 1998 should provide the basis for regulating disclosures of personal information to third parties. However, I am concerned that the relationship proposed between the two regimes should not be made too complex for public authorities to operate in practice or for individuals to understand," said Elizabeth France.

In her response to the consultation on the Draft Bill, published in June, she points out that it is unlikely that the requests for information will fall clearly into requests for information from the applicant, or requests for third party information.

EXEMPTIONS FOR UNSTRUCTURED DATA

The Data Protection Act 1998 will be amended to cover all personal information held by public authorities. However, access to unstructured personal data requires a description of that data. If the applicant cannot provide this description, or the cost related to providing the information will exceed an appropriate limit, the information can be withheld.

It is important to note that the FOI legislation will apply to information held by public authorities while carrying out their public functions. Therefore, for example personnel records will not be included.

THE PRACTICALITIES

The Draft Bill provides, in principle, access to records of any date. However, certain historical records may still be withheld. It is proposed that the requests for information would have to be dealt with within 40 days of receiving the fee (if a fee is required). Authorities can charge up to 10% of the costs incurred. The Government thinks, however, that it is unlikely that many charges will exceed the fee of £10 currently charged under the 1984 Data Protection Act.

In cases of dispute, the applicants can approach the Information Commissioner, who is empowered with the right to issue Information and Enforcement Notices. However, the Information Commissioner would not have the power to require a public authority to disclose information. The Data Protection Registrar's view is that the enforcement powers are inadequate.

Both applicants and public authorities can appeal to the Information Tribunal (to be formed on the lines of the Data Protection Tribunal) against a decision of the Information Commissioner.

PARLIAMENT CALLS FOR GREATER OPENNESS

The Bill has been discussed in Parliament by the House of Commons public administration committee. The Members of Parliament, the Data Protection Registrar, freedom of information campaigners and civil servants have all criticised the Bill heavily.

The Home Secretary, Jack Straw, has promised to review several of the Bill's sections, and drop the ban on access to secret government reports, such as accident investigations.

While the public consultation finished on 20th July, there is a good chance that the passage of the Bill will take a considerable amount of time.

The Draft Bill proposes that it will come fully into force 5 years after it has been passed, leaving public authorities more than enough time to prepare for compliance.

Apart from the obligation to provide access, public authorities will have to adopt and maintain publication schemes, which specify the information published by the authority.

The Draft Freedom of Information Bill was subject to consultation until 20th July. The consultation document may be purchased from the Stationery Office, Tel: 0870 600 55 22. ISBN: 0-10-143552-5. Price: £11.80. The text is also available on the Internet at http://www.homeoffice.gov.uk