Recent Developments in Freedom of Information in
Great Britain: A Preliminary Appraisal of the
Government's
"Code of Practice"
A research paper submitted to the
Newspaper Division
Association for Education in Journalism and Mass
Communication
for possible presentation at the
AEJMC National Convention
Washington, D. C.
August 1995
by
Dr. Wallace B. Eberhard
College of Journalism and Mass Communication
The University of Georgia
Athens, Ga. 30602-3018
706/542-5033. FAX:542-4785
E-mail:[log in to unmask]
Recent Developments in Freedom of Information in Great Britain:
A Preliminary Appraisal of the Government's "Code of Practice"
The time has come for us to recognise the wisdom of Thomas
Jefferson between whom and the Freedom of Information there
flows an apostolic line. The want of freedoms which the
Americans receive ... has always been a British deficiency.[1]
To Americans frustrated by the sometimes cumbersome nature of
the Freedom of Information Act, it may come as a surprise to
learn that there is a certain amount of envy and admiration in
the mother country for what the FOIA can do for the patient
citizen who takes the time to put it to use. The quotation
above is, we think, a fair appraisal of the state of freedom of
information in Great Britain. Frustrated by access barriers,
British writers often find information in U. S. documents to
shed light on British politics. In a recently-published book
titled The Fall of Hong Kong, dealing with the imminent
departure of the British from that colony and the events leading
thereto, author Mark Roberti leaned on American documents to
build a case for what he calls "Britain's betrayal."[2] The
reviewer noted that a good deal of the
background to the withdrawal agreement was well hidden from the
British public.
Much of this is unknown to the British people; the Thirty
Year Rule conceals the documentation. The U. S. Freedom of
Information Act, on the other hand, has already put many of
the facts into the public domain; it is from this source
that the author has drawn extensively.[3]
Most of an issue of Secrets, publication of the Campaign for
Freedom of Information, a rough equivalent to the
Washington-based Reporters Committee, amplifies the curious
circumstance described above, including information about
cleanliness on British cruise ships, pesticide data unavailable
in England and environmental problems at an American air base in
England -- all taken from documents obtained by using the U. S.
FOIA.[4]
It is accurate to describe the legal state of affairs vis a vis
open records at the national level in Great Britain as lagging
behind the United States, but the persistent zeal for openness
there is on a par with the freedom of information movement in
the United States. The collective effort of British journalists
and
other interested groups has not yet led to legislation. But, it
did lead to the establishment of an Open Government Code of
Practice in April 1994.[5]
This paper will (1) summarize some of the fundamentals in the
British political culture that affect freedom of information,
(2) review the history of the freedom of information movement in
Great Britain, (3) describe the unsuccessful attempt to pass a
national freedom of information law in Great Britain that led to
the government's adoption of a Code of Practice with no legal
enforcement powers and (4) report on the use the Code in the
period from April to December 1994.
Readers should note that there has been considerable success in
working toward openness at the local government level in Great
Britain, in terms of access to both records and meetings. These
advances in law, roughly equivalent to the 50 sets of laws gover
ning openness at the state level in the United States, are not
the focus of this paper.
The British Political Culture and Openness in Government
Those who seek more openness in government in any nation-state
must work within the political culture. Commentators in Great
Britain who have tried to explain the difficulty in effecting
change must confront the question of "...why Britain's tradition
of governmental secrecy has proved so durable."[6] Professor A. P.
Tant's summary of the British political tradition and its effect
on secrecy is a useful one.
Old Tory theory saw a King as the earthly leader of a heavenly
ordained society, holding the initiative in policy making. The
English Civil War overturned that view and replaced it with a
Whig "balanced constitution" that put parliament and its members
at the center of policy making. The result was not a purely
people-centered democracy, but one that dealt with a system of
checks, balances and patronage involving the King, Lords and
Commons. Parliament took on a coloration that was more
deliberative than representative, though it was the latter as
well. The result "institutionalized a narrow, elitist concept
of representation."[7] The elected representatives thus set
themselves apart from those they represented as an independent
authority. Professor Tant argues that this has led to an
elitism in British governmental theory that seems
"highly questionable in a democratic era,"[8] and unquestionably
bears on the matter of official secrecy.
Cabinet ministers, plucked from the House of Commons when a
government is formed, thus become charged with the
responsibility for seeing that government pursues a wise policy,
whether or not it meets with immediate public approval.
Strong, centralized, decisive and independent government is
thus again emphasized, with the assumption that good
government is not founded upon what the people want, but
rather, upon what their governors consider to be right.[9]
Responsibility in this scheme of things is to the Parliament,
rather than popular opinion. Ministers must be ready to resign
when mistakes are disclosed, "rather than when they are
discovered."[10] Undisclosed mistakes do not pose a constitutional
problem, and ministers thus have a strong incentive to keep a
lid on information release. Leaking is not only irresponsible
but a breach of trust and duty, and undermines public
confidence and supprt. "Since government is not (directly)
accountable to the people, there is little need for the people
to be well-informed about the details of public policy."[11]
Responsiveness is not an obligation. All this identifies
...an idea central throughout the whole of the British
tradition, and upon which official secrecy rests. That is,
that government -- whatever the form or ideological
justification -- is the sole arbiter of the national
interest/public good.[12]
Another commentator posed the difficulty in a slightly
different way: "Open government depends upon a justification
grounded in moral rights which contradicts the received theory
of constitutional law in the United Kingdom."[13] Under the
received theory, "...the State is the Leviathan and open
government has no place in the Leviathan. The Leviathan is
all-powerful, sovereign, and open government implies a sharing
of power in the act of knowing and the right to know."[14]
This summary of British political theory and its application to
government openness may, to the cynic, seem to be a carbon copy
of what is operative on the American side of the Atlantic.
Citizens and journalists have long struggled against oppressive
methods of controlling information in the United States. But,
without reviewing two hundred years of American political
theory, there is an obvious and fundamental difference in a
nation which rejected imperial control in favor of a system that
picked its governors from among the people at the outset.
Accountability resides in the elected official, and Americans
have never been shy in going directly to those officials for
answers. Truth and full disclosure are not easy or guaranteed,
but the distance between the governed and the government seems
much closer than in Great Britain. To sum up:
The official mind in Britain has an exaggerated regard for
tradition. Tradition consists largely of the accumulation
of precedents. In the establishment canon precedent is
overwhelmingly on the side of 'discretion' and
'confidentiality.' Both terms signify values which are
deeply rooted in ruling British political culture.[15]
The Freedom of Information Movement in Great Britain
Observers date the contemporary campaign for freedom of
information in Britain to the 1960s. Into the 1970s the
movement is described as "no more than a loose association of
bodies and individuals sharing a common position on a single
issue, and working together informally to further parliamentary
bills."[16]
The "loose association" included many press and consumer
groups, some carrying the imprimatur of the legal establishment.
In 1978, for instance, a committee of Justice, the British
section of the International Commission of Jurists, issued a
pamphlet titled, Freedom of Information.[17] It was edited by
Anthony Lincoln, Q. C., representing the Justice council
including lawyers, jurists and legal scholars. It succinctly set
forth a rationale for more openness in government. It
recognized the basic difficulty in defining the term, "freedom
of Information," and the fact that universal openness was a
pragmatic impossibility. But it insisted that "too little
information is furnished to the public by government in the
United Kingdom and its agencies and that unnecessary secrecy
surrounds many aspects of the administration and the legislative
process."[18]
The committee suggested that it was time to go beyond stating
the need for more information by moving to concrete action.
They recommended a Code of Practice that would establish an
affirmative framework for openness as well as a set of rules
within the Code. This included a requirement to provide
information or documents on request, unless there was an
exception or exemption. The exemption list was remarkably short
and reasonably precise: (1) defense, national security and
internal security, (2) law enforcement, (3) litigation material
otherwise protected by privilege, (4) material entrusted in
confidence to an agency or authority, (5) matters concerning
individual privacy and (6) material which would expose an
individual to a defamation action.[19] The exemptions were not
foolproof, and there was no enforcement mechanism inherent in
the proposed code, but the document added prestige and
commitment to the FOI movement.
Attempts to legislate openness at a variety of levels
increased. A 1979 bill unsuccessfully introduced in Parliament
by Clement Freund sought access to advice and information that
had been available to ministers, making "factual advice"
available without delay, thus separating it from the more
sensitive "policy advice."[20] Without the support of the
government -- including for a
long period of time that of Prime Minister Margaret Thatcher, a
stubborn opponent of openness -- most attempts at change led
nowhere.[21]
The ingathering of a variety of organizations under an umbrella
organization in the early 1980s was a critical milestone in the
FOI campaign. The 1984 Campaign for Freedom of Information
brought together what might best be described as a diverse and
interesting group of organizations, which numbers at least 81 at
present.[22] The organizations range from the predictible (Campaign
for Press and Broadcasting Freedom, National Union of
Journalists and Institute of Journalists) to the unpredictible
(Church of England Board for Social Responsibility, Greenpeace
and the Vegetarian Society), at least by American freedom of
information standards. (The Orwellian "1984" has since been
dropped from the title, and a three-member staff headed by
director Maurice Frankel works out of a compact -- 20 by 20 --
but efficiently organized office at 88 Old Street, London.)
The unified campaign produced its first major legislative
success with the Local Government (Access to Information) Act
1985. The bill legislated openness of subcommittees to the
public and amended a 1960 open meetings law to redefine vague
closure provisions for reasons of "confidentiality" and "public
interest." Minutes were to be made available along with
government information assembled for governmental use.
Publication of the public's right of access to information was
also required in the new law. Passage of the law represented an
instance in which the Thatcher government did not oppose a
private member's bill, and required only some modification to
give the support needed for passage.[23]
Other successes short of a national freedom of information bill
followed, including laws providing individual access to personal
files (1987) and medical records (1988). Some observers regard
these as only minor triumphs, without denigrating the level of
difficulty required, in that they made little or no dent in the
larger circle of secrecy drawn around Westminster and Whitehall
by political tradition and laws such as the Official Secrets
Act.[24]
The (Failed) Attempt for a Freedom of Information Bill
In 1991, the Campaign for FOI launched its most important
effort, a move for national legislation covering access to major
organs of government, roughly equivalent to the U. S. Freedom of
Information act. A 165-page document[25] was published in November
1991 that contained a draft bill and commentary.
The authors described the draft bill as accomplishing the
following:
1. Creating a "general public right of access to government
records."[26]
2. Defining exempt classes of information.
3. Preventing government from withholding records "unless it
can demonstrate that their contents are exempt."[27]
4. Establishing a review body -- a Commissioner and Tribunal
-- with power to examine records and require disclosure.[28]
Exempt information was designed to "protect information where a
genuine case for preserving confidentiality"[29] existed, and would
permit withholding if significant damage would be done to
specific interests: defense, security and intelligence services,
foreign relations, law enforcement, the economy, commercial
activities of a public activity or a third party, privacy
invasion, policy advice (but not expert advice) and legal advice
related to possible litigation.[30]
The Commissioner and Tribunal arrangement was designed to
expedite review where denial resulted and be less expensive and
more informal than the courts; a body of case law would be built
up over time.[31]
The Introduction argued forceably and directly that the law was
not an attempt to undermine traditional parliamentary
accountability, but only opened up access on the part of both
Members of Parliament and the public. That it would change
Ministers' ability to withhold information was acknowledged but
found no reason to use this as an argument for opposing the
law. The introduction also cited the experience of other
democracies
-- particularly Commonwealth nations such as Canada, Australia
and New Zealand -- which had modified their own parliamentary
systems by passage of open records legislation; none of those
countries examined reported a weakening of traditional power and
authority beyond the increased openness. The advantges far
outweighed any perceived disadvantages.[32] Any person would have a
right of access to information not exempted, and fees would be
minimal and predictible. A thirty-day response time was set for
agencies. Procedures for appeals through the Tribunal were
simply and clearly outlined.
The bill was introduced by Labour Party MP Mark Fisher as a
private member bill in 1992. It survived into a second reading
and a five-hour debate on the floor of the House of Commons 19
February 1993, and was voted into committee 168-2. That there
was enormous support seemed evident, and comment wide ranging.
Glenda Jackson, Labour Party MP and actor, noted that Sweden had
had an FOI law for two hundred years as did the United States,
"which had more paranoia than most about internal and external
threats to its security."[33] A Conservative MP, Alan Howarth, said
"the great prize" in FOI was the improved opportunity it would
give the press for serious discussion of important issues.
Decision making would be improved if the advice of experts was
"tested by being exposed to the scutiny of common sense and of
alternative experts."[34]
In the end, the naysayers prevailed and the bill died in
committee, because of a lack of support by John Major's
government. Conservative MP Bernard Jenkin said the bill
represented a "blunderbuss approach" to increased openness.[35] The
government's spokesman, William Waldegrave, said that
information sometimes must be kept secret, that governing
involved negotiation at many public and private levels where
"one cannot always have all the cards face up."[36] The proposed
bill went further than legislation in other countries, he
claimed. And, he asked, was it right that public authorities
should provide access to internal papers in what might be a
"fruitless diversion of effort."?[37] He promised a White Paper on
openness before the end of summer, 1993.[38]
That is just what happened. The position paper, simply titled
Open Government[39], was the government's non-legislative response
to the failed open records bill. Commentators found both good
and bad in the government's proposals. Professor Charles Raab
said it "ambitiously and creditably encompasses issues that
constitute a broadly-based agenda for information policy. It
brings together measures concerning public access to information
about the current workings of government..."[40] There was in the
document the possibility for "modest but achievable change that
builds upon recent laws and initiatives."[41] On the other hand,
Professor Raab continued, the implementation of a Code of
Practice was heavily dependent on personality and persuasian
without an enforcement mechanism within the law. Discretion was
still broad and vague. "Whilst the White Paper grasps the
importance of openness as a democratic principle, it blurs it
through uneven and arbitary application to different objects."[42]
While opening access to information, the White Paper denied a
right to documents. The Justice report of 1978[43] was incorporated
in the Code, without permitting access to documents as suggested
in the Justice report.[44]
The Campaign for Freedom of Information was less approving than
the scholarly analysis provided by Professor Raab. The lead
story in their publication said it directly with its headline,
"Code of Practice Falls Short of Right to Know."[45] The Open
Government document contained some positive aspects, but "stops
a long way short of delivering freedom of information." The
good news was that there was a "foot in the door" but the
failure to provide access to documents (as opposed to
information) was disappointing. Despite concessions, "the need
for genuine freedom of information is as pressing as ever," the
organization argued.[46]
What then, is this "Code of Practice" which the government
initiated and implemented on its own in the wake of the
unsuccessful open records legislation? In a document urging the
citizens use the code, which went into effect in April 1994, the
Campaign for Freedom of Information outlined what the Code
offered:
*A government promise to release information unless it was
exempt by one of fifteen broad classes of exempt information.
*A government response to requests within twenty working days.
*An appeal mechanism. The citizen can ask the department to
review its decision and then request review through the
Parliamentary Commissioner for
Administration (the Parliamentary Ombudsman), an action which
has to be initiated by a Member of Parliament.
*Publication of departmental internal rules and manuals.
*A general commitment to explain to citizens administrative
decisions which affect them.[47]
The defects remained, however: supplying information but not
documents, too many exemptions vaguely worded, an uncertain and
probably overpriced fee system, limited coverage of governmental
bodies, no authority to compel disclosure, no direct, citizen
appeal to the Ombudsman.[48]
A copy of the pamphlet published by the government to explain
the Code and its use is appended to this article.[49] It is a simply
written document in question-and-answer style that describes how
the citizen may use the Code, and which government departments
are covered by it. The Campaign for FOI urged that the Code be
used, despite its shortcomings, and asked for feedback on
problems.[50]
The first comprehensive report on the effect of the Code was
issued 9 November 1994 and seemed to bear out the worst fears of
those in the freedom of information campaign.[51] The two key
problems were wildly varying charges for information and
searches, and differing interpretations of how the Code should
be applied to requests.
The worst case of photocopying charges was found in the
National Rivers Authority, which required L50 a page for regular
size photocopies and L100 per oversize page, roughly equivalent
to $80 and $160, respectively. The Public Health Laboratory
Service said it would charge between L2,000 and L3,000 to name
local authorities who reported salmonella food poisoning
incidents since 1988. Some agencies asked for a flat L15
application fee paid in advance, nonrefundable even if no
information was forthcoming.[52]
There were some bright spots. The Cabinet Office, the
Department of National Heritage, the Lord Chancellor's
Department, the Scottish Office and most of the Northern Ireland
Office were waiving charges for the first five
hours of work. The Department of Trde and Industry and the
Welsh Office also did not charge if costs were under L100.[53]
The media have been supportive in the campaign and in reporting
most developments in the implementation of the Code, according
to director Maurice Frankel.[54] For instance, both the Times and
the Guardian carried succinct summaries of the Campaign's report
on the code[55] and the Times editorialized strongly that the
application of the Code was being undermined by uneven
application and exhorbitant fees.[56] The media response is
predictably uncertain, Frankel says, and some reports on
specific agency responses to requests have been ignored by
newspapers.[57]
It is too early to assess fairly the effectivness of the
Ombudsman in supporting the code, but a few early success were
reported late in November. William Reid, the Parliamentary
Ombudsman, said both the Department of Health and the Minister
of Transport had disclosed information after an appeal to his
office was carried to the departments concerned. He reported
only twenty-one complaints to his office by the end of November,
but said they demonstrate "the way in which information, which
the Government had been reluctant to release, can be obtained
under the Code."[58]
Summary and Conclusions
With less than a year of experience of using the Code, it is
premature to assess it as a success or failure. What has been
reported so far reminds us of the early years of the U. S.
Freedom of Information Act, where response time was uncertain,
the appeals process nonexistent and the fee structure
capricious. A certain amount of realism about freedom of
information is urged by one commentator.
The experiences of Freedom of Information in the USA, and
support for the Local Government (Access to Information) Act in
[Great Britain], support the contention that open
government is a minority interest. Nevertheless, the lesson
from all aspects of politics is that
action is ultimately determined by the powerful, not by the
majority.[59]
The Code as government response to blunt the freedom of
information movement will not, it is safe to say, satisfy the
individuals and organizations who have worked in recent decades
to change deep-seated resistance to openness. Although the
level of legal openness in Great Britain may indeed be below
that which is enjoyed in the United States, the commitment to
improve, change and educate is neck-and-neck. The British
government can expect no respite in the years ahead from those
committed to open government.
[1] . Edward Pearce, New Statesman, 22 January 1988, 8.
[2] .
Martin Booth, "The Last Signing" (review), The Sunday Times (Lond
on) Books,
13 November 1994, 6.
[3] . Ibid.
[4] .
"What the American FOI Act Reveals about Britain," Secrets, July
1991, 1, 2,
4, 5.
[5] . "Testing the Open Governm
ent Code of Practice," Open Government Briefing No. 1.
(London: Campaign for Freedom of Information, May 1994), ap
pendix.
[6] . A. P. Tant, "The Campaign for Freedom of Informati
on: A Participatory Challenge to
Elitist British
Government," Public Administration 68 (Winter 1990):478.
[7] . T
ant, 479.
[8] . Ibid.
[9] . Tant, 480.
[10] . Ibid.
[11] Ibi
d.
[12] . Ibid., 481.
[13] . David Galbraith, "Official Sescret
s, Security and Open Government," in Freedom of
Speech: Basis a
nd Limits, Garry Maher, ed. (Stuttgart: Franz Steiner
Verlag Wiesbaden Gmbh, 1986), 64.
[14] . Ibid.
[15] . Martin
Smith, "Open Government and the Consumer in Britain," in Freedom
of
Information Trends in the Information Age, Tom
Riley and Harold C.Relyea,
ed. (London: Frank Cass
and Co., 1983), 125.
[16] . Tant, 481.
[17] . (London: Justice,
1978).
[18] . Ibid., 1.
[19] . Ibid., 17-18.
[20] . Tant, 482
.
[21] . Ibid., 483.
[22] . "The Campaign's Supporting and Obs
erver Organizations," Secrets, August 1993,
8.
[23
] . Tant, 483-4.
[24] . Tant, 484-5.
[25] . A Freedom of Infor
mation Act for Britain: A Draft Bill and Commentary
(London: Campaign for Freedom of Information, 1991).
[26] . Ibi
d., 1.
[27] . Ibid.
[28] . Ibid.
[29] . Ibid.
[30] . Ibid., 1
-2.
[31] . Ibid., 2.
[32] . Ibid., 5-7.
[33] . "The Commons
Debate: What MPS said," Secrets, August 1993, 3.
[34] . Ibid.
[
35] . Ibid.
[36] . Ibid.
[37] . Ibid.
[38] . Ibid.
[39] . Cm
2290, Open Government (London: HMSO, 1993).
[40] . Charles D. Ra
ab, "Open Government: Policy Information and Information Policy,"
Political Quarterly 65 (July-September 1994): 340.
[41] . Ibid., 341.
[42] . Ibid.
[43] . See footnote 17, supra
.
[44] . Raab, 342-3.
[45] . Secrets, August 1993, 1.
[46] . I
bid.
[47] . "Testing the Open Government code of Practice," May
1994 (London: Campaign for
Freedom of Information
, 1994), 1-2.
[48] . Ibid., 2-3.
[49] . "Open Government: Acces
s to Government Under the Code of Practice," 1994 (London,
n.p., 1994).
[50] . "Testing," 3-12.
[51] . "Cost of
Information 'Prices Right to Know out of Public's Reach,' " (news
release,
Campaign for Freedom of Information), 9 November 1994
.
[52] . Ibid.
[53] . Ibid.
[54] . Interview, Maurice Frankel,
London, 18 November 1994.
[55] . "Whitehall Data Fees 'excessiv
e,' " Guardian, 9 Novembesr 1994, 6; "L100 a
Photoc
opy is Price of Public's 'Right to Know,' " Times, 9 November 199
4,
8.
[56] . "Glasnost for Sale: Freedom of Inform
ation Requires Reasonably Low Fees," Times,
9 Novem
ber 1994, 19.
[57] . Frankel interview.
[58] . "Ombudsman Flexe
s Muscles," Independent,24 November 1994, 12.
[59] . M.C. Hunt,
Open Government in the 1980s (Sheffield, England: PAVIC
Publications, Sheffield City Polytechnic, 1988), 10.
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