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Editorials

Secret government revisited

BMJ 1999; 318 doi: https://doi.org/10.1136/bmj.318.7200.1712 (Published 26 June 1999) Cite this as: BMJ 1999;318:1712

Draft Freedom of Information Act may be a step backwards

  1. Martin McKee, Professor of European public health. (m.mckee{at}lshtm.ac.uk)
  1. London School of Hygiene and Tropical Medicine, London WC1E 7HT

    Three years ago Lang and I argued in the BMJthe case for a freedom of information act in the United Kingdom.1 Citing a series of examples in which the public had lost confidence in the health advice given by government, we contended that a much greater openness was required if public trust was to be restored. Last month the British government unveiled its much heralded proposals for a freedom of information act for the United Kingdom. How does it match up to the expectations?

    Since we wrote about it three years ago, the case for greater openness has strengthened considerably. The revelations emerging from the inquiry into bovine spongiform encephalopathy,2 the fiasco surrounding tobacco sponsorship of Formula One racing,3 and, most recently, the disclosure that the government is seeking to influence the media coverage of genetically modified food are only the most obvious examples of the need for action.4 And the benefits of disclosure are also becoming clearer. British campaigners on safety and the environment have made increasing use of the United States' Freedom of Information Act to obtain information on events in the United Kingdom.5 The release of internal tobacco industry documents under court order in the United States has arguably been one of the most important achievements in public health this decade.6 Disclosure is now firmly established as a means of protecting the health of the public.

    When it was elected in May 1997 the current government seemed to agree with this analysis. In opposition it had been highly critical of the secrecy of the previous government, making a freedom of information act a manifesto commitment.7 In government, however, action was repeatedly postponed, amid much talk of cabinet in-fighting, leading to the loss of the minister who had been the strongest advocate of radical change.

    So how do the government's proposals8 shape up? The key provision is a right of access to records held by public authorities and designated private bodies carrying out public functions or contracts. An information commissioner will have power to order disclosure. So far, so good. But compared with the earlier white paper and similar legislation elsewhere many important elements have been diluted, with worrying consequences for the health of the public.

    Effective policies on health and safety demand that we learn lessons from earlier mistakes. Car ferries no longer set out to sea with their bow doors open. Escalators on the London Underground are no longer flammable. Thus it is amazing that all reports on transport accidents, fires, dangerous consumer products, and chemical or nuclear accidents will henceforth be exempt from disclosure, as will information obtained during investigations into risks from industrial hazards to the public and to workers.

    The bovine spongiform encephalopathy affair9 and, more recently, the debate about genetically modified food have raised concerns about the quality and impartiality of advice given to ministers. A proposal in the white paper that such advice would be available unless it would cause harm has been replaced with a blanket ban on any such disclosure. This is more restrictive than the present code of practice, introduced by the previous government, and will make it almost impossible to challenge the government's interpretation of increasingly complex and often contested evidence.

    The message pervading the draft bill is that the public interest is to be subordinated to that of the executive. The proposal in the white paper that disclosure should take place unless it would cause “substantial harm” to government has been replaced by the substantially weaker test of “prejudice.” Furthermore, the “opinion” of an authority will now have legal weight and can only be challenged in a court if it is “irrational” or “outrageous in its defiance of logic.” In this area the proposals are even weaker than the existing code of conduct, under which the ombudsman can require a public body to disclose information that is exempt from disclosure if such disclosure would be in the public interest. Instead, the new information commissioner will simply be able to require an authority to consider disclosure. It seems unlikely that those involved in a cover-up will give such a request more that the most perfunctory consideration.

    An authority intent on resisting disclosure will be much strengthened by a power to withhold information which it deems to be harmless but which, if combined with other information—which it need not specify—could cause harm. Even when information is released, an authority can require the recipient to state what he or she intends to do with it and to place restrictions on its subsequent use, including prohibiting making it public.

    Finally, just in case anything seems to be slipping through the net because there are no grounds in the proposed act to prevent disclosure, the government can prevent it doing so by means of a parliamentary order.

    In an increasingly complex world and in the face of enormously powerful vested interests acting at a global level, it is more important than ever that the government should be seen as an authoritative source of advice on risks to health. It can only do so if its decision making processes are transparent. If anything, these proposals increase the opacity. An important opportunity to strengthen public confidence in the health advice it obtains from the government has been missed.

    References

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