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UK Secrets Legacy Yielding

The UK has not necessarily been known for its open access to government records, but significant strides have been made with an administrative code.

For many Americans, the defining element of English information policy has always been the Official Secrets Act. The television mystery series Rumpole of the Bailey once poked fun at the breadth of the Act by focusing -- in passing -- on an agency's refusal to disclose how many biscuits were served at the commissary, citing the Official Secrets Act as the basis for withholding the apparently confidential information.

The Economist has observed, in lending editorial support to the cause of freedom of information in the United Kingdom, that in the past, English historians trying to flesh out the details of the Suez Crisis in 1956 were forced to conduct most of their research in the United States because the records were not available in their own country.

But Parliament amended the Official Secrets Act in the latter 1980s, removing from its coverage a huge amount of non-sensitive internal records. Those changes removed one of the last hurdles to implementing freedom of information legislation in the UK. Following the lead of Commonwealth countries-- particularly Australia and Canada -- the English government began to seriously entertain the possibility of providing some kind of right-of-access to government records.

What the UK has ended up with is a hybrid compromise. Instead of a law, it has the Code of Practice on Access to Government Information, an administrative code that contains many of the features normally seen in statutory schemes, but does not have the force of a statute. However, it allows citizens to make requests, to appeal denials, and, most importantly, to file a complaint with the Parliamentary Ombudsman, a legislative officer who bears some resemblance to Canada's Information Commissioner in his role of adjudicating access complaints.

Perhaps in a typically English twist on the right to complain to Parliament, citizens must go through a member of Parliament rather than filing their request directly with the ombudsman. Charles Ramsden, who helps oversee the code for the Machinery of Government and Standards Group, points out that members do not have to accept a complaint, allowing them to use their discretion to screen out frivolous cases. However, Ramsden notes, the member who chairs the committee with jurisdiction in this area has let it be known that he will accept any legitimate complaint and forward it to the ombudsman.

The code contains 15 exemptions, ranging from national security to internal deliberations, from law enforcement to third-party business information, from prohibitions created by other statutes to personal privacy. One special exemption applies to communications with the Royal Household.

CROWN COPYRIGHT
Unlike the U.S. federal government, which has no copyright protections, the English system recognizes the concept of Crown copyright. But the guide to interpretation issued by Ramsden's office notes that "where a department provides government information to a member of the public, copyright in the material belongs to the Crown. Given the circumstances and the spirit of the code, departments will not normally wish to limit further copying and use of the material."

As to third-party copyright, the guide points out that copyright protection applies to a number of outside publications, including letters, and that consent of the author is normally required before such materials can be disclosed. But it notes that "where material was supplied to the government in the course of its business and the copying is carried out for the purpose for which the material was communicated or any related purpose which could reasonably have been anticipated by the copyright owner, the material may be copied without express authorization."

As to computerized information, the guide explains: "The same copyright considerations apply as for written information. If departments wish to assert copyright in computer-readable material, they will need to issue an end-user license to specify the uses to which the material may and may not be put."

Fees, another traditional sore point in access legislation, are addressed in the 1995 annual report published by Ramsden's department. The report notes that "the government's aim is that charges, where made, should strike an appropriate balance between the interests of the applicant and those of the taxpayer, but it is for departments to decide how they apply these guidelines to their individual circumstances."

So far the public seems to be unaware of its rights under the code. The 1995 annual report notes that a Parliamentary committee found that "the relatively low number of code requests recorded in 1994, compared, for example, to application under open government laws in some overseas countries, was due to lack of awareness amongst the public of the existence of the Code of Practice, and that this in turn was due to the low level of publicity undertaken by the government." The report indicates that the government has increased its publicity campaign. According to Ramsden, the number of requests received so far has been disappointing when compared to other jurisdictions. The 1994 annual report, which covered the first nine months of the code, reported 2,600 requests, while the 1995 report indicated that requests had dropped to 1,353. The 1994 report showed that Australia had 36,500 requests in its 1993-94 reporting period, and Canada had 10,400 requests during the same time. U.S. federal agencies receive about 500,000 requests annually.

While the UK has an active public-interest group in the Campaign for Freedom of Information, Ramsden points out that the press has not used the code very much and, as a result, has done little to publicize it. He says the press has long depended on leaks and speculation in reporting on the government and that it has not been traditionally fond of slogging through government documents as a source for stories.

One of the main complaints about access statutes is the time it takes to get information, making the process virtually useless for reporters working on short deadlines. But the UK code commits departments to respond within 20 days, and a monitoring of activity showed that nearly 94 percent of requests were answered within that time frame. The time for completing appeals is not spelled out in the code and agency practice varies. The 1995 annual report notes that the Health and Safety executive has set a target of responding within six weeks, while the Central Statistical Office has set a target of 10 working days. The report found that agencies dealt with 25 appeals and completed 13 of them within 20 days.

It takes time for a government bureaucracy to accept the idea that its records are public. This is particularly true in a political system like the UK where the tradition has been so heavily skewed toward secrecy for so long. While creation of an administrative code instead of a statutory right is the political equivalent of sticking your toes in the water rather than your whole body, it is a significant move for a traditionally closed bureaucracy. The UK has become a world leader in the complementary area of data protection and there is no reason to believe that it cannot become an important player in the access world as well.

Harry Hammitt is editor/publiser of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues. E-mail: < 75111.743@compuserve.com >.


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