Article: Prohibitions on Disclosure

The four hundred laws that shackle your right to know
The Times Law section, May 24, 2005
By Heather Brooke

For many people the Freedom of Information Act is not working

In 1987, 31 people died in the King’s Cross Tube station fire. The Fennell Report into the disaster found that many of the dangers had been identified in reports by the fire brigade, police and Railway Fire Prevention and Fire Safety Standards Committee. Yet there was one group of people who were kept in the dark about the danger: the Tube-travelling public.

Almost 20 years have passed and the public are still being denied access to these reports, despite the implementation of the Freedom of Information Act. The secrecy is because of an obscure law – Section 21 of the Fire Precautions Act 1971 – that makes disclosure to the public a criminal offence.

This law is exactly the kind that must be reviewed under the terms of the Act, but the Department for Constitutional Affairs, the government department in charge of implementing the Act, did not even discover the prohibition until last year. And it is running years behind schedule to make these laws compliant with the Act. So far only eight out of nearly 500 prohibitions have been changed or repealed.

Although the Freedom of Information law was passed in 2000, the first Parliamentary Order was made in November 2004, affecting just eight pieces of legislation, and came into force on January 1 this year. A second order to address the remaining 400-plus laws should have been published by January 1, but was deferred to March, then April, and has now been delayed indefinitely.

This is a cause for concern because until these laws are amended, they trump the Freedom of Information law, leaving many citizens with no more rights to information than they had before. Fire inspection reports are the most sought after.

Under the Fire Precautions Act 1971, even if you were buying a property you could not find out whether it had been cited for fire-safety violations from the fire authority without the written permission of the owner. David Wilkinson, a divisional officer of the West Yorkshire fire service, says: “It does actually make one of my officers guilty of an offence that could lead to a fine or jail.”

It was always going to be difficult to review more than 400 pieces of primary and secondary legislation. The normal procedure in Parliament is that new legislation amends the old automatically. But government officials were so worried about freedom of information that they decided to create an exception whereby the old laws had precedence over the new, and would have to be reviewed individually.

Jo Sanders, a media lawyer at the London firm Olswang, says: “It would have been much simpler and more user-friendly for the Freedom of Information Act to create a self-contained regime that clearly set out all the circumstances in which information was exempt from disclosure. It is unfortunate that, when the Freedom of Information Bill was passed, Parliament decided to retain myriad very specific exemptions contained in existing legislation.”

The most notorious of the prohibitions is the Official Secrets Act but other less well-known laws stop the release of all kinds of material regardless of the public interest. Even finding all the laws has been a task that has kept the Department for Constitutional Affairs busy for more than five years.

Maurice Frankel, director of the Campaign for Freedom of Information, says: “At least we’ve had eight successes. In 1993 there was an exercise by the Tories to review these laws and they didn’t get as far as repealing any. It defeated them.”

Some of the prohibitions relate to personal privacy but the Act provides an exemption for such information, so to have a series of separate exemptions might be seen as overkill. Of more concern are the prohibitions that favour businesses, making it illegal for a regulatory body to release information it holds even if it is clearly in the public interest. For example, until Section 118 of the Medicines Act 1968 was made Freedom of Information compatible, there was a ban on the release of any clinical trial information regardless of the public’s need to know about drug safety. This information could be obtained only from the US Federal Drug Administration.

“We said at the time this was being done that this process is usually not successful,” Frankel says. “The sponsoring departments tend to see all the advantages of keeping the prohibitions. There’s a whole essay to be written on each one of these, and if the department doesn’t want to get rid of them, there’s not a lot the Department for Constitutional Affairs can do.”

Until these laws are repealed, the British public will continue to be the last to know.

See the prohibitions that have been amended

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