To send content items to your account,
please confirm that you agree to abide by our usage policies.
If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account.
Find out more about sending content to .
To send content items to your Kindle, first ensure firstname.lastname@example.org
is added to your Approved Personal Document E-mail List under your Personal Document Settings
on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part
of your Kindle email address below.
Find out more about sending to your Kindle.
Note you can select to send to either the @free.kindle.com or @kindle.com variations.
‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi.
‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.
Most introductions for previous editions of this book have been written in periods of high drama, crisis and feverish activity relating to secrecy or scandals connected to the release of information. The episode concerning MPs expenses' claims, which commenced with a freedom of information (FOI) request, continues that tradition. In May 2009, the promise of major constitutional change was uppermost in the minds of political leaders. A problem that had not been properly addressed by the authorities – what should MPs be paid for being an MP? – led to a disreputable system for expenses that was ill conceived, effectively un-policed and in which greed and cynicism were encouraged. I cannot recall the reputation of Parliament being at a lower ebb. Ministers and celebrated parliamentarians were standing down or faced de-selection. The affair led to the resignation of the Speaker, the first such resignation since 1695. Widespread reform was being promised including efforts to spread power more widely, reinvigorating local government, encouraging independent minded individuals to stand for Parliament, reforms of MPs expenses and independent audit and monitoring of those claims for expenses. The sights quickly moved to empowering MPs and select committees in their scrutiny of the executive (see chapter 9), proportional representation, an elected upper chamber, fixed-term parliaments and reining in the prerogatives of the prime minister (see chapter 9). That old chestnut, a written constitution, soon emerged. The latter would confront two shibboleths of the British constitution: the Crown and parliamentary sovereignty.
The UK Freedom of Information Act (FOIA) has been in effect in relation to individual access rights for almost five years. Any assessments of the effects of the Act are at this stage likely to be exploratory and qualified. However, there are signs of optimism. The first Information Commissioner (IC) has had a robust and positive influence in advancing openness and transparency. The IC, and the Scottish IC, have been focal points not only in enforcing the Acts but in championing the era of freedom of information (FOI), the legislation and what they represent. The Information Tribunal (IT) under the UK model is producing a steady stream of jurisprudence on the legislation including the Environmental Information Regulations (EIR) and the Data Protection Act. The courts have been supportive of the principles of openness and transparency in their judgments concerning appeals. ‘FOIA introduced a radical change to our law, and the rights of the citizens to be informed about the acts and affairs of public authorities … in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities.’ A powerful legal culture of openness and transparency has been developed. FOI has gained strong support across all spectrums of the press. Attempts by government and Parliament to remove features of the Act that were deemed hostile or unhelpful – and it must be remembered that Parliament has felt the impact of the Act in the decisions leading to reform of MPs expenses – were thwarted.
‘The Act contains a presumption in favour of disclosure.’
(EA/2005/0027 P. Toms v IC, para. 2)
The previous chapter set out the general framework of the Freedom of Information Act (FOIA) statutory exemptions and related items including some general points addressed in the case law. This chapter will concentrate on the case law of the exemptions themselves under FOIA. The Environmental Information Regulations (EIR) are dealt with in chapter 7. Excessive cost and vexatious requests have been dealt with and so we can proceed directly to the main body of exemptions under FOIA Pt II.
Those contracting with public authorities (PAs) that are covered by the legislation may attempt to contract out of the legislation's provisions. This is not possible. In EA/2007 R. Salmon v IC and King's College Cambridge the Information Tribunal (IT) stated ‘that no contracting out of basic obligations safeguarded by FOIA can be permissible’ (para. 30). This was given the strongest of support by the High Court in Corporate Officer of the House of Commons v IC et al. A contractor may attempt to identify information which is ‘confidential’ in a schedule and argue that disclosure by a PA would amount to a breach of contract. Such a schedule would in genuine cases of confidentiality be a wise practice.
Government control of information in Britain did not first emerge as a problem for government in 1889, when the first Official Secrets Act was passed. Control of information had been a central preoccupation of government since government first assumed responsibility for defence, taxation and administration, and even before. The King's household, until the Tudor monarchy, was characterised by personal government on the advice of trusted counsellors who remained bound by allegiance and confidence to the Crown. Serious breaches of confidence might involve a charge of treason in the form of adhering to the King's enemies under the Act of 1351, which was extended well beyond the terms of the statute by judicial decisions. High treason ‘was regarded as a final denial of the divine order of things as established in the body politic and defined in the oath of allegiance’.
Breaches of confidence were not always problematic in the absence of widespread printing and publishing facilities. More pressing for the power in existence was the control of the spread of seditious ideas or movements which could threaten its position. This point is vividly illustrated by the breach with the Church of Rome and the accumulation of statutes extending treason to punish inter alios those who:
shall by writing, printing, preaching, speech, express words or sayings, maliciously, advisedly and directly publish, set forth, and affirm that the Queen our said sovereign lady Queen Elizabeth is an heretic, schismatic, tyrant, infidel or an usurper of the Crown of the said realms or any of them …
In the Introduction to this book I give an outline of some of the developments in the law relating to freedom of information since the last edition. My discs were sent to the publishers early in May 2009 but I was able to incorporate some developments until October 2009. I would like to thank Dan Metcalfe who, as the Law School's research assistant, provided invaluable work on examining the decisions and appeals of the Information Commissioner and the Information Tribunal.
On 30 November 2000, the Freedom of Information Bill was given Royal Assent to become the Freedom of Information Act 2000 (FOIA). Section 1 of the Act has been described by the Information Tribunal (IT) as a ‘new fundamental right to information’. The bill had been before Parliament for over a year. Prior to that, the White Paper on Access to Information and then a draft bill and consultation paper, had been scrutinised by the Select Committee on Public Administration in the Commons as well as, in the case of the latter, by a special committee of the House of Lords. In 1966, the Fulton report had recommended ways of removing unnecessary secrecy from public life. Since 1974, and throughout the long years of opposition, the Labour Party had supported numerous Freedom of Information (FOI) bills. These would have created a right for an Information Commissioner to enforce the disclosure of information and would also have amended the Official Secrets Act (OSA).
Reluctant support was given to a Private Member's bill in 1979 by Prime Minister Callaghan immediately before the loss of office to Mrs Thatcher. Neil Kinnock stated in 1992 that a FOI Bill would be among the first bills of an incoming Labour Government. For Tony Blair FOI legislation was essential to bring about a culture change in British government. It would be a signal of a ‘new relationship’ between the people and government.
‘I'll be watching you’ is the motto of the twenty-first century. It is a familiar refrain but as we saw in chapter 1, the past lacked today's technology. In a report in January 2009, the House of Lords Constitution Committee reported on the extent of surveillance in the UK. The following examples were provided (and see pp. 323–41). The National DNA Database (NDNAD) was being expanded and contains ‘millions of samples’, new databases for a variety of public services were being introduced or developed, and there was a steady increase in the use of CCTV in both the public and private sector. There has been a profound and continuous expansion in the surveillance apparatus of both the state and the private sector. Today, computer databases and data-sharing, the monitoring of electronic communications, electronic identification, and public-area CCTV surveillance are ubiquitous and exert an influence over many aspects of our everyday lives. ‘The expansion in the use of surveillance represents one of the most significant changes in the life of the nation since the end of the Second World War, and has been shaped by a succession of governments, public bodies, and private organisations’ (para. 3). Widespread surveillance, whether collective or targeted, can be used for unjustifiably discriminatory purposes, it reported. A super database run by a private contractor tracking all phone and internet communications is planned to be operational by 2009.
Enacted in 2000 and in operation in the UK since 2005, the Freedom of Information (FOI) Act has revealed information which has generated calls for constitutional reform. A massive 'information jurisprudence' has developed through the decisions of the Information Commissioner, the Information Tribunal and the courts. Governments' responses to the war on terror have involved increased resort to claims of national security and accompanying secrecy, but these developments have to exist alongside demands for FOI and transparency. FOI has to balance access to and protection of personal information, and major amendments have been made to the Data Protection Act in order to balance the competing demands of transparency and privacy. This detailed discussion of FOI laws and personal data laws examines the historical development of secrecy, national security and government, and their modern context.
The popular phrase ‘Information Society’ was coined to describe the essence of the computerised world. From globalised financial markets to government, from national and international security to education, from multinational corporations to small employers, from police to social welfare, medical treatment and social services, we are confronted by information repositories and retrieval systems whose capacity to store and transmit information is staggering. A moment's thought should make us appreciate that we have always been an information society. Anyone who has studied the constitutional history of Britain will appreciate that a major factor in the struggle between Crown and Parliament was the latter's desire to be informed about who counselled and advised the monarch in the formulation of policy. That monumental work in the history of our public administration, the Domesday Book, was basically an information exercise to assess the wealth and stock of the nation. Our process of criminal trial by law constitutes an attempt to exclude unreliable evidence and to establish by rules of evidence a more reliably informed basis of fact on which to establish guilt or innocence. Lawmaking itself ‘confessedly needs to be based on an informed judgment’ requiring ‘the widest access to information’. The spread of information in the form of fact, opinion or ideas has variously been repressed, exhorted, victimised or applauded to advance the ideologies of those whose moment of power is in the ascendant. In this general sense, we can see previous societies as information societies.
The role of the courts in helping to create a more open society is vital. Greater openness depends upon the mutual co-operation of the executive, Parliament and the courts. In the early 1990s, the High Court observed that it could not create a freedom of information (FOI) statute. Parliament did by enacting the government's bill. The courts' role in the Freedom of Information Act (FOIA) is limited, though important, to appeals on points of law. The Information Commissioner (IC) and the Information Tribunal (IT) were deliberately introduced to avoid litigation and save cost. Some important judicial decisions have emerged on the FOIA and EIR as we saw in chapters 6 and 7. Courts could be called upon to make crucial decisions on review and numerous recent judgments have raised questions relating to openness. These decisions exist alongside the reforms brought about to administrative adjudication by the Tribunals, Courts and Enforcement Act 2007, which has established a two-tier system of tribunals. Some important judgments have involved the Special Immigration Appeals Commission (SIAC) and its use of secret proceedings and special counsel. There is no doubt that after years of indifference, English courts have displayed a greater awareness of the benefits to be gained from openness and freedom of expression. The common law was recognising such a fundamental right – and not simply a state concession – and it has been boosted by the Human Rights Act 1998 (HRA).
This chapter will focus upon the role of legislation in other countries, as well as their political practice, in providing and protecting information, whether to or about individuals or, in the case of the USA, committees of the legislature overseeing the operation of legislation and expenditure. I will concentrate on the USA, Canada, Australia and New Zealand. These are countries that, in spite of their enormous differences both between themselves and with Britain, nonetheless possess certain legal cultural similarities with the British system, either through common-law inheritance or through direct or indirect constitutional influence. This chapter will allow us to assess the contribution which overseas practice has made to opening up government, or otherwise, and will also act as a benchmark for our own practice. It should be noted that freedom of information (FOI) laws have faced reactions from executives and legislatures seeking to rein in what are regarded as excesses. We start by examining America where this is certainly true, but in Ireland the FOI Act of 1997 was subject to modification in 2003, which also illustrated a constraint on openness.
Today, over seventy countries possess FOI laws. In addition there are multinational regimes such as the EU laws examined in chapter 10. Germany is a recent recruit with a law coming into effect in 2006. China introduced a law by State Council decree in 2007 to come into effect in 2008.
Central to any freedom of information (FOI) regime is the existence of exemptions. In this chapter there will be an analysis the case law on exemptions. It sets out the content of the exemptions themselves and provides background analysis. A frequent question is: ‘With so many exemptions what's the point of having a Freedom of Information Act (FOIA)’? A brief answer is that it allows access to information otherwise not available and most regimes place the burden of justifying non-disclosure on those seeking to withhold it. While the UK FOIA contains many exemptions that are similar to those present in overseas laws, there are some peculiar characteristics of the UK law. There are twenty-three exemptions (in reality more than this) including ss. 12 and 14 (below). Apart from these two exemptions, all the others are in Pt II of the Act. Eight exemptions are absolute (below). Seventeen are on a class basis. In a class exemption, disclosure of any document within the class is ipso facto damaging although PI disclosures may be made under s. 2 where they are not absolute exemptions. In the case of the other exemptions where ‘prejudice’ or damage would be caused by the disclosure because of their contents, an exemption may be claimed on the basis of the prejudice caused. However, the Commissioner may make a judgement on whether ‘prejudice’ exists and whether, if it exists, it is de minimis.
There is a broader context to the subject of information and government. How does government operate alongside the duties to disclose information under the laws we have examined? How does government manage to conceal its operations and activities from public scrutiny? What other provisions are there that place duties on government or others operating under close association with government to disclose their activities to the public, or to bodies operating on behalf of the public interest (PI)?
Crisis prompts inquiry. There are numerous sensational events which have provided an insight into contemporary governmental practice and one systemic development which concerns government structure. Previous editions of this book have examined the stormy events surrounding Michael Heseltine's resignation as Defence Secretary from Mrs Thatcher's Government in January 1986 over the Westland helicopter saga – an episode which raised dramatic illustrations of government manoeuverings, internal inquiries as well as select committee inquiries, and leaks in high places. Mr Heseltine felt he was a victim of a conspiracy to end constitutional government because he took his ministerial responsibility seriously in seeking to promote the British defence industry and declared pointedly ‘that the case against him was being put by “unidentified sources”’. ‘We have no documents, no statements, no piece of paper that we can examine, we have just whispers on the telephone. Now, that is the way British Government is to be conducted...’
The Environmental Information Regulations 2004 (EIR), SI 2004/3391, form a free-standing provision giving access to environmental information (EI) as defined. Information available under these provisions will be exempt from access under the Freedom of Information Act 2000 (FOIA) by virtue of s. 39 FOIA, although the ‘generality’ of s. 21(1) FOIA is not restricted by s. 39(1) FOIA. This means that the exemption involving access by other means under s. 21 (see chapter 5) is available under the EIR. The regulations give effect to Council and EP Directive 2003/4 EC and the Aarhus Convention (the United Nations Economic Commission for Europe) on access to information, public participation in decision-making and access to justice in environmental matters signed by the UK in 1998. This is a remarkable example of international agreement on access to information. Section 74 FOIA provides a power to make such regulations in domestic law. A code of practice applies to bodies covered by the regulations. The powers of the Information Commissioner (IC) also apply to the investigation and enforcement of the regulations. Scottish public authorities (PAs), bodies under s. 80, will be covered by Scottish regulations.
The Information Tribunal (IT) has produced some decisions introducing unnecessary complexity into the relationship between the FOIA and the EIR. In EA/2007/0065 Rhondda Cynon Taff CBC v IC a copy of the Land Drainage Act 1991 was requested. The IC required the PA to disclose a copy of the Act.
National security poses the most difficult of practical problems in respect of information. ‘Information Warfare’ has become an important aspect of the agencies that defend national security. National security concerns what many regard as the quintessential function of the state. It involves the most developed form of information technology – most highly secret and according to renegade security agent David Shayler much of the intelligence is unreliable, an accusation that was vigorously denied. The allegation resurfaced in relation to the use of intelligence to justify the war in Iraq. The subject covers the most intrusive of information-gathering exercises conducted on behalf of government agencies. National security is also a virtually unanswerable plea to immunity and confidentiality, preventing access by individuals to information upon themselves. As we shall see in chapter 11, the courts have long shown themselves sensitive to executive assertions of national security precluding judicial investigation of an individual grievance. Although there are indications of increasing unease where the plea is put to a strained use, the courts have nonetheless reminded themselves of their limited role when assessing questions concerning executive judgements involving national security. Many of the most controversial cases concerning information in recent years have related to national security. The peculiar potency of the subject must be fully realised. It is not characteristic of all areas of government activity. However, it will provide an interesting area of human activity in which some of the theoretical points in chapter 1 above may be tested.