FEATURE ARTICLE
       http://www.freepint.co.uk/issues/150301.htm#feature

                      "Freedom of Information"
                        By Richard Wakeford

The Freedom of Information Act
------------------------------

"Freedom of Information will signal a new relationship between
government and people: a relationship which sees the public as
legitimate stakeholders in the running of the country ..."
Tony Blair, 1996.

Labour arrived in government in May 1997 with a manifesto commitment
to introduce a Freedom of Information Act (FOIA). It kept the idealism
bred of opposition long enough to publish a widely welcomed and
radical White Paper "Your Right to Know" in December 1997
<http://www.official-documents.co.uk/document/caboff/foi/foi.htm>.
The legislation set out here would for the first time establish
people's right in law to have access to a wide variety of official
records and information. Central to its message were proposals that:

* All government departments, public bodies and private organisations
  carrying out statutory functions would be covered;

* There would a very limited number of specific exemptions;

* Strict tests would be applied to ensure that information would be
  released except where disclosure would cause substantial harm to a
  limited number of specific "interests" or would be against the
  public interest;

* There would be an independent Information Commissioner with the
  powers to order the disclosure of information.

David Clark, the Minister responsible, travelled and consulted widely
and produced proposals that were dubbed a "second generation" freedom
of information (FOI) approach, drawing on the experience of countries
such as USA, Australia, Canada, New Zealand and Sweden.  An
independent website supported by the Government was set up to allow
the public an additional means of providing the Government with
feedback on the proposals within the White Paper. The site is no
longer regularly updated, but you can still read submissions and David
Clark's responses to site users at <http://www.foi.democracy.org.uk/>.

However the whiff of radicalism on the air was enough to stir Sir
Humphrey to action and Ministers were soon brought to their senses.
David Clarke returned to the back benches and the task of steering the
FOI Bill through Parliament passed to the Home Office.  The Act
finally emerged in December 2000 - the full text is at
<http://www.hmso.gov.uk/acts/acts2000/20000036.htm>. However key
proposals had been watered down so that:

* Broad umbrella exemptions were incorporated. For example, the
  Security and Intelligence Services are entirely exempt.  This means
  that although no-one would ever expect access to operational
  information there is also no public scrutiny of administrative
  affairs such as the costs of the expensive new headquarters
  buildings for MI5 and MI6.

* The test of "substantial harm" has been replaced by one of "harm" -
  only one word has been lost but it is a critical one in guiding
  judges when assessing where the balance of public interest should
  lie.

* The Information Commissioner can make recommendations but has no
  powers to enforce disclosure.

In the opinion of many commentators these changes have thwarted the
original thrust of the White paper and left the FOIA a weakened
instrument - see the Campaign for Freedom of Information
<http://www.cfoi.org.uk>. The Act may even in places be weaker than
the voluntary Code of Practice on Access to Government Information
that was introduced by John Major in 1993 - see
<http://www.homeoffice.gov.uk/foi/coderept.pdf>. The course of the
debates surrounding FOIA can be followed in the Guardian's Freedom of
Information archive at <http://www.newsunlimited.co.uk/freedom/>.

The process of implementation of the Act is now underway and is due to
be completed within the next 5 years. The responsibility of the Office
of the Information Commissioner has been assumed by the Data
Protection Commissioner - see <http://www.dataprotection.gov.uk/> and
each department and body affected will be putting FOI mechanisms in
place. A full list of the relevant organisations can be found in
Annex 1 of the Act.

The FOIA applies within England, Wales and Northern Ireland. Proposals
for separate legislation will be forthcoming from the Scottish
Executive <http://www.scotland.gov.uk/news/releas99_6/pr1311.htm>. The
signs are that the Scottish Executive and the Scottish Parliament may
take a more open approach. If Scottish and English FOI law does
conflict then some interesting situations should in time arise.

Currently there is little guidance available on how the FOIA will
operate. The Office of the Information Commissioner has published a
short booklet in plain English but has not yet posted it on its web
site.

The text of the FOIA itself is not the easiest of reading, written as
it is in that peculiar convoluted hypertext beloved by Parliamentary
draftsmen and comprehensible only to lawyers.  One issue that received
little attention in the debate leading up to the Act is that of
information retrieval - how in practice will the public know what to
claim? Will information be indexed and how far will civil servants act
as intermediaries to interpret enquiries and search out information?

Disclosure through the Public Records Office
--------------------------------------------

Official documents are subject to the 30 year rule under Public
Records Acts and retention and release is administered by the national
archives. The Public Record Office (PRO) <http://www.pro.gov.uk> is
the national archive for England, Wales and the United Kingdom,
housing records from across UK central government and, in smaller
numbers, from the central courts. The National Archives of Scotland at
<http://www.nas.gov.uk/> and the Public Record Office of Northern
Ireland at <http://proni.nics.gov.uk/> play this role in the
devolved administrations.

Records held by the PRO may be closed for periods longer than 30 years
("extended closure"), or retained by the government department
concerned. There are various reasons for this; some records may
contain distressing personal information about people and events; or
release may damage national security or international relations, or
records may have been supplied subject to certain confidential
undertakings. The release of other types of information may be barred
under legislation which overrides the provisions of the Public Records
Acts. Typical extended closure periods are 50 years, 75 years and 100
years. An example of an extended closure record is census returns,
which are closed for 100 years. In recent years it has been the policy
to accelerate release and the PRO's February 2001 list has files
extending back to 1910 (on capital punishment) and to World War II (on
signals decrypts and Tito). Release of Treasury files relating to
decimalisation has also been brought forward to coincide with the 30th
anniversary of "D Day".

The Wider Legal Framework
-------------------------

Since 1911 the Official Secrets Act has been the primary instrument
restricting freedom of information (although non-disclosure clauses
are present in some 400 other statutes) but in recent years
prosecutions have been rare. The law on confidentiality and on
copyright is increasingly used by government to deal with publications
written by ex-employees as shown by actions taken against the recent
swathe of books written by SAS soldiers and intelligence officers.
The case of Richard Tomlinson, the ex MI6 agent, can be followed on
his publisher's site  at <http://www.thebigbreach.com/news/>. The ex-
MI5 agent David Shayler's site at <http://www.shayler.com> now evokes
an "Error 403 - Access forbidden" network response. Is this
significant, and who would know why?

Recent legislation that will make a significant change in the ability
of individuals to go public in the public interest are:

* The Human Rights Act 1998 - full text at
  <http://www.legislation.hmso.gov.uk/acts/acts1998/19980042.htm>
  which has yet to be tested in court but provides a defence on the
  grounds of freedom of expression (Article 10 of the Convention on
  Human Rights); and
 
* The Public Interest Disclosure Act 1998 - full text
  at <http://www.legislation.hmso.gov.uk/acts/acts1998/19980023.htm>,
  which gives legal protection to whistleblowers.

The Freedom to Care campaign site has an extensive list of
references to whistleblowing cases at <http://www.freedomtocare.org/>.

Only environmental matters have benefited from a UK statutory freedom
of information regime in recent years - an example of the beneficial
effects of EC Directives. Access to environmental information is now
formalised in an international convention, known briefly as the Arhus
Convention, or more lengthily as the Convention on Access to
Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters. The Convention was drawn up by the
United Nations Economic Commission for Europe and signed by 39 states
and the European Union in 1998. The full text of the Convention and
associated resources are at
<http://www.unece.org/env/pp/welcome.html>.

A Change in the UK Culture on Openness
-------------------------------------

The FOIA may be a catalyst for changing government and the public
sector towards working in a more open way. In time as the official
culture adapts, the natural response will be to make information
available rather than retaining it. Openness perhaps comes more
readily to scientists and Sir Robert May, when Chief Scientist,
embedded the open approach in "The Use of Scientific Advice in Policy
Making"
<http://www.dti.gov.uk/ost/ostbusiness/index_policy_making.htm>.

The Phillips Inquiry into the BSE crisis <http://www.bse.org.uk/> made
a number of forceful comments and recommendations concerning the
government's handling of information. The Food Standards Agency
<http://www.foodstandards.gov.uk/> which was established following the
Inquiry is starting life with a clean and open slate, deliberately
distancing itself from the secretive attitudes of MAFF. The FSA is
publishing full details of its advisory committees together with their
papers and minutes and publication of a Code of Practice on Openness
has been announced.

Europe
------

Freedom of information in the European Union is in danger of going
into reverse. A Code of Access to Documents has been in place since
1993 and has been subject only to very specific exemptions. However an
initiative started in Amsterdam in 1997 to enshrine this code in
European law has been taken as an opportunity by the Commission, the
Council and the Parliament to introduce a series of blanket
exemptions. These will cover any discussion documents, any documents
relating to third parties and any documents about military or foreign
policy or "non-military crisis management". A watching brief on the
European situation is maintained by the magazine Statewatch at
<http://www.statewatch.org/>. Quoted here is the ineffable comment of
a European official who refused to release documents on the grounds
that they "could fuel public discussion on the subject".

Freedom of Information Elsewhere
--------------------------------

Freedom of Information legislation has been established for the last
30-40 years in the USA, Australia, New Zealand and Canada. Sweden is a
special case having had a Freedom of the Press Act since the
eighteenth century.  Chapter 2 - On the Public Nature of Official
Documents can be read at the International Constitutional
Law Project at <http://www.uni-wuerzburg.de/law/sw03000_.html>.

Even summarising the working of FOI world wide would provide material
for a substantial book but examples of procedures in practice can be
seen at sites such as the State of Tasmania's public access FOI page
at <http://www.justice.tas.gov.au/justice/info_foi.htm> or the
Queensland Information Commissioner's decisions at
<http://www.slq.qld.gov.au/infocomm/listdec.html>.

It is perhaps in the USA where freedom of information has most claim
to be part of the national culture but statistics of claims made under
the FOIA show that it is business and the press rather than the public
who make most use of their rights. Government department and public
agency commonly maintain a FOI area on their web home pages: a list
of Federal agency FOI sites can be found at
<http://www.citizen.org/litigation/foic/schbook.htm>.

As in so many areas FOI practice in the USA is characterised by an
active public interest sector. One of the most sophisticated resources
is that provided by the National Security Archive which was founded
in 1985 by a group of journalists and scholars who, obtaining
documentation from the U.S. government under the FOIA, sought a
centralised repository for these materials. Over the past decade, the
Archive has become the world's largest non-governmental library of
declassified documents at <http://www.gwu.edu/~nsarchiv/>.

In debates on FOI in Britain the USA is often held up as the land of
free access. However the US government, state governments and federal
agencies receive heavy criticism at home for their failures of
openness. See, for example, the project on government secrecy run by
the Federation of American Scientists at <http://www.fas.org/sgp/>.

Several bulk declassification programmes have been launched by Federal
Agencies in recent years. One collection holding politically
contentious documents is that relating to US operations in South and
Central America in the 70's and 80's and made available by the State
Department at <http://foia.state.gov/vstateSearch.asp>. The .pdf
files, however, show extensive use of black marker pen and the reader
is left wondering what real progress in freeing information has in
fact been made. The material has a role to play in the truth and
reconciliation process but the inadequacies of FOIA are made
poignantly apparent in an account by a torture victim of her
unsuccessful attempts to get at the truth behind her suffering
<http://www.eecs.umich.edu/~pavr/harbury/archive/1996/050696.html>.

On a less serious note US experience shows how impossible it is for
governments to prove that they have released all that they do hold.
The National Security Agency maintains a page at
<http://www.nsa.gov/docs/efoia/> on "Frequently Requested UFO Related
FOIA Information" which baldly states that "No Records Exist. The
following terms have been searched in response to requests for
information on Unidentified Flying Objects (UFOs) and Paranormal
Events, but no responsive material has been located". Nevertheless "X
File" conspiracy theories continue to thrive.

And finally - although governments are seen by the public to be the
guardians of secrets, few people appreciate how much information
really is at loose in the public domain. A recent exercise to
demonstrate this point was undertaken by the US Air Force and its
wonderfully named Space Aggressor Squadron which found everything
needed to build a backyard satellite jamming system on the Internet.
A summary is at
<http://www.eurekalert.org/releases/nsci-ayn041900.html>
but unfortunately there are no construction details!


Freedom of Information Resources in the UK
------------------------------------------

Campaign for Freedom of Information
  <http://www.cfoi.org.uk>

Charter 88
  <http://www.charter88.org.uk/home.html>

Democratic Audit UK
  <http://www.fhit.org/democratic_audit/index.html>

Guardian Freedom of Information archive
  <http://www.newsunlimited.co.uk/freedom/>

Freedom to Care
  <http://www.freedomtocare.org/contents.htm#contents>

Home Office Freedom of Information Unit
  <http://www.homeoffice.gov.uk/foi/foidpunit.htm>

Index on Censorship
  <http://www.indexoncensorship.org/>

Lobster (the journal of parapolitics)
  <http://www.lobster-magazine.co.uk/>

Statewatch
  <http://www.statewatch.org.>


Resources Outside the UK
------------------------

Freedom of Information Review
  <http://www.comlaw.utas.edu.au/law/foi/foi_rev.html>

Freedom of Information Sites on the Internet (University of Tasmania)
  <http://www.comlaw.utas.edu.au/law/FOI/bookmarks/FOI_Index.html>

Human Rights Library (University Minnesota)
  <http://www1.umn.edu/humanrts/>

Resources on Freedom of Information Issues (Syracuse University)
  <http://web.syr.edu/~bcfought/foires.html>

Riley Report (Riley Information Services)
  <http://www.rileyis.com/index.html>

Secrecy News (Federation of American Scientists)
  <http://www.fas.org/sgp/news/secrecy/index.html>

US State and Local Freedom of Information Issues
  <http://listserv.syr.edu/archives/foi-l.html>


Further Reading
---------------

Article 19 and Liberty. "Secrets, Spies and Whistleblowers: Freedom of
Expression and National Security in the United Kingdom". 2000
<http://www.article19.org/docimages/791.htm>

Tony Bunyan "Access to documents could fuel public discussion"
(also Deirdre Curtin "Authoritarian temptation seduces EU decision-
makers" and Aidan White "How Journalists Have Spiked NATO's Secrecy
Guns") Essays for an Open Europe. 2000
<http://www.statewatch.org/secret/essays.htm>

Peter Hennessy. "Accelerated History? Whitehall & the Press since
1945". James Cameron Lecture 2000.
<http://www.charter88.org.uk/pubs/brief/0011hennessy.html>

George Kennedy. "How Americans got their right to know:" 1996.
<http://www.johnemossfoundation.org/foi/kennedy.htm>

Andrew Neil. "Britain's Free Press: Does it have One?"
Andersen Lecture. 1988.
<http://www.wpfc.org/HWA%2088-Andrew%20Neil.html>

> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Richard Wakeford is Head of Science and Technology Information
Services at the British Library <http://www.bl.uk>.

> - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

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