While the United States has had the Freedom of Information Act (FOIA) for more than 30 years and countries like Canada, Australia and New Zealand have adopted FOI legislation, the road to access has been much tougher in England -- the birthplace of the cult of secrecy. While no one ever said it was easy to go from secrecy to openness, British Prime Minister Tony Blair's Labour Government seems poised on the brink of a major disappointment.
Part of Blair's platform was to replace Britain's current administrative code of access, which invests great discretion in government agencies as to whether to disclose information. Blair intended to provide a statutory right of access and bragged that his government would put forth the Rolls Royce of FOI legislation. When the government's white paper on the subject was released for public comment in December 1997, Blair's bragging rights seemed intact.
The proposed statute recommended broad access rights, limited exemptions, a requirement to show harm from disclosure before applying exemptions and a strong public-interest standard. Enthusiasts in Canada, where the federal Access to Information Act has lagged behind for lack of serious legislative and executive attention, looked at the superior English proposal and suggested adopting its approach in Canada. The British public-interest group, the Campaign for Freedom of Information (CFI), which has tenaciously fought for access rights, was also impressed.
Changes in Design
But delays were inevitable, and David Clark, the government's point man on FOI, resigned. The responsibility for FOI was given instead to Home Secretary Jack Straw, who many saw as less enthusiastic about access. The concerns of advocates seemed well-placed last spring when the government finally released a draft bill, which is significantly less generous than the proposal envisioned by the original white paper.
The bill was roundly criticized as a step backward. The New York Times called the bill "sadly inadequate," and Maurice Frankel, CFI's executive director, observed that the bill was weaker than the current code and earlier bills proposed by the opposition parties.
Notably, the white paper recommended that exemptions be tied to a "substantial-harm" test, meaning that an agency would have to show a concrete harm that would occur if the records were disclosed. Straw indicated that, after considerable discussion, the standard had been scaled back to a showing of "prejudice" to the agency if the information were disclosed. He even argued, during an appearance at CFI's awards ceremony, that substantial and prejudice meant the same thing. Based on the experience of other countries with FOI legislation, "prejudice" is plainly a more lenient standard than "substantial harm," regardless of what Straw may say.
The draft bill would provide 40 days in which an agency was required to respond, twice the requirement under Britain's current administrative code, the same time limit as the FOIA in the United States. The proposed time limits would be the longest of any FOI legislation.
Perhaps the most impressive part of the current proposal is its position on fees. Agencies would not be allowed to recoup more than 10 percent of their direct costs, a formula that is, if anything, more progressive than other statutes.
More Changes
Another change from the White Paper which may, ultimately, make sense but may cause problems in the short run, is to invest the current data registrar with the authority to serve as ombudsman for both access and privacy issues, renaming the position information commissioner. The white paper recommended a commissioner model something along the lines of Canadian provinces, where the commissioner is an independent legislative officer with decision-making powers.
Moving that authority to the data registrar's office makes sense, but Britain's data-protection laws are so restrictive that the transition from protecting personal data to weighing the conflicting values of privacy and access may be a long one. The data-protection laws also apply to personal information held by government and the private sector, and the FOI legislation will only apply to the public sector.
Further, data protection applies throughout the United Kingdom, while more autonomous regions like Scotland will not be subject to Parliament's FOI legislation, but will bring in their own instead.
Perhaps sensing some of the trouble she might encounter in the beginning, Data Registrar Elizabeth France told attendees at the Privacy Laws & Business annual conference in Cambridge this summer, "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."
Time-Honored Tradition
Advocates have been lobbying for FOI legislation in Britain for several decades. Almost 15 years ago, the Economist editorialized in favor of an access law. The publication observed that British historians couldn't thoroughly research the dimensions of the Suez Canal crisis of 1956 because so much of their government's information was locked up by the Official Secrets Act.
Instead, the historians relied on records made public by the U.S. government to write about their own country. Britain has come a long way since, and even the bill currently on the table is a vast improvement over the cult of secrecy that has held sway in Britain for so long.
But the Blair government has made the political mistake of placing the bar too high, promising an access statute so progressive it leaves the United States and other countries behind. By offering a bill that does not deliver on that promise, the Labour Government has set itself up for vocal and pointed criticism.
It will be up to the Blair government to rethink its position or explain its current one in such a way that critics will be stilled. Until then, the United Kingdom's road to final FOI legislation will continue to be rocky.
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Harry Hammitt is editor/publisher of Access Reports a newsletter published in Lynchburg, Va., covering open-government laws and information-policy issues. E-mail him
