Home | Databases | WorldLII | Search | Feedback Privacy Laws and Business International Report

Towards an open and accountable UK public sector [2000] PLBIRp 42; (2000) 55 Privacy Laws and Business International Report 15

Towards an open and accountable public sector

A report by Ingrid Wilson

THE UK FREEDOM OF INFORMATION BILL and its relationship with the Data Protection Act 1998 will pose new challenges to data controllers and regulators alike. The Bill is expected to become law in November.

The FOI Bill (PL&B July '99 p.6-7) was discussed by an authoritative panel at the Privacy Laws & Business Annual Conference in July. The panelists, Steve Limpkin, Senior Policy Adviser/Head of Implementation, Freedom of Information Unit, Home Office; Elizabeth France, Data Protection Commissioner; and Dr David Flaherty, Consultant and former Information and Privacy Commissioner, British Columbia, Canada, explored the issue from their different perspectives.

The Home Office is now waiting for the Bill to pass through Parliament. Elizabeth France will have the responsibility of enforcing the new law. Dr David Flaherty, on the other hand, has years of experience in balancing the right to privacy against the right to know. The panel was chaired by James Michael, Director, Centre for Communications and Information Law, University College, London.

BILL'S WIDE EXEMPTIONS NOW UNDER DEBATE

Steve Limpkin provided an update on the progress of the Freedom of Information Bill. The Bill has been introduced into the House of Lords for its second reading, but is yet to have committee stage discussion. His prediction was that it is likely to be dealt with in the period after the House has risen in July, and before the Queen's speech. It is likely to be given Royal Assent towards the end of November.

Steve Limpkin discussed the main features of the Bill (p.16), noting that a number of the exemptions were the subject of some discussion, for example, the exemption for documents relating to policy formulation. He also listed some key outstanding issues for consideration at Committee stage particularly relating to the exemptions and decision-making powers. He stressed the importance of the publication schemes as a "powerful tool" for open government. The publication schemes will require all public authorities to make certain information publicly available.

Steve Limpkin concluded his presentation by emphasising the benefits of the Bill both to the public and to government. "I think it is clear that the more open the operation of the government is, and the more accessible it is, actually the better the government is. The more people participate as an informed public, the better the process of governing and delivering public services is going to be."

PUBLIC BODIES OUGHT TO START PREPARING

Elizabeth France's presentation emphasised strongly the importance of the FOI law alongside a data protection legislative framework. In this respect, she supported any FOI law as better than the current system of a voluntary code of practice. She also discussed briefly the interface between the two laws. Like Steve Limpkin, she recommended publication schemes and noted that the sheer number of bodies covered was a strength of the legislation. Her message to public bodies was to assume Royal Assent at the end of the year and to start preparing themselves.

THE CANADIAN EXPERIENCE

Dr David Flaherty expressed his disappointment with the Bill in no uncertain terms. However, he reiterated Elizabeth France's point that a statutory scheme is better than no statutory scheme. He focused his discussion on how to be an effective Information and Privacy Commissioner, sharing his experience from his previous role as Information and Privacy Commissioner in British Columbia. David Flaherty highlighted some of the problems likely to be faced by the new Commissioner, for example, the burden of managing a data protection and information access workload, building a jurisprudence, limiting the scope of the exemptions, and managing the oversight functions.

David Flaherty commented that there will continue to be a "resistance to open government in a climate of necessary cultural change" and suggested that a new FOI regime can enhance the advancement of an "oral culture" whereby there will be a reluctance within the civil service to document decision-making. He noted additional problems with delays and the costs arising from processing requests.

David Flaherty also supported publication schemes, which promoted routine disclosures of government information. He recommended the greater use of websites as a means by which information could be made public.

DISCUSSION

Elizabeth France responded to comments made by David Flaherty regarding the burden of FOI responsibility on her office. She referred to the UK experience of 16 years with subject access to personal data. She believes that there will be an even balance between FOI and data protection. She also responded to the comment about the development of an oral culture - in her view and experience as a civil servant, she felt that fear of judicial review was greater than fear of disclosure, therefore, there will always be paper records of decision-making.

James Michael posed the interesting issue of the right of access to information as a human right - "the right to receive and impart information." He noted that there may be an opportunity under the UK Human Rights Act to pursue this issue.

Progress with the Freedom of Information Bill can be followed via the House of Commons website at http://www.parliament.uk/commons (see under "what's new"), or the Home Office pages at http://www. homeoffice.gov.uk/foi/index.htm. Ingrid Wilson previously worked as Senior Promotion & Education Officer at the Office of the Federal Privacy Commissioner, Australia. She is now a Data Protection Officer with the London Borough of Chelsea and Kensington. She can be contacted by e-mail: ingrid.wilson@rbkc.gov.uk.

FOI in a nutshell

UK's Freedom of Information Bill:

o establishes a statutory right of access to recorded information held by public authorities, subject to specified exemptions

o establishes the office of the Information Commissioner, which will enforce both the FOI Act and the Data Protection Act 1998

o obliges public authorities to develop publications schemes indicating the documents that will be available

o means that the Data Protection Act 1998 will be extended to cover all manual personal information held by public authorities (local authorities, police etc) in addition to that held in structured filing systems

o will apply to local government by October 2002, and to all public authorities by April 2005

Organisations should now:

o start preparing for the law by auditing their recordkeeping practices

o nominate someone within the organisation to be responsible for implementing the new law and regulations

o start training the rest of the staff so that they know how to deal with requests for information, and situations where the right to know contradicts privacy rights

Guidance will be provided:

o by the Office of the Information Commissioner and

o by the Home Office, which will provide information to central government agencies