Page 4458 - Week 14 - Thursday, 28 November 2013
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government will be subject to a single public interest test. The only exception to this is that schedule 1 sets out a number of discrete categories of information whose release the Assembly considers will always be contrary to the public interest. The decision to include this information is not made lightly. They are limited in scope and included because there is a real necessity to keep this information confidential.
To determine the public interest, the bill sets out a framework under which the decision must be made. This includes a list of public interest factors, both for and against disclosure, and the bill does all it can to assist in what will inevitably be at times a very difficult task. For example, a few years ago in Scotland, tobacco companies were trying to FOI some research from a university into what causes young people to start smoking. Immediately this seems wrong. There is certainly a strong argument that the release of this information would be contrary to the public interest, as tobacco companies would probably use it to help market their product and get more young people addicted to cigarettes. Conversely, however, it could be argued that it would be in the public interest to have the information available so that other health organisations, as well as parents and other policymakers, can use it to understand what tobacco companies are already doing and prevent young people from starting smoking. We could all have considerable debates about where the greater public interest lies and which course of action would prevent the most harm. And this will be the challenge confronting decision-makers. Whilst it will at times be a challenge by definition, it will provide a better outcome for the community overall.
The justification for each of the existing exemptions in the current FOI Act is reflected in the public interest factors listed in schedule 2. For example, the current exemption for executive documents in section 35 of the current FOI Act will be replaced with a public interest factor favouring non-disclosure where disclosure could reasonably be expected to “prejudice the collective responsibility of cabinet”. This ensures that decision-makers recognise the legitimate reason for withholding executive documents and balance that against any competing public interest in release. For example, there may be a greater public interest in the release of information showing that the executive disregarded some important information it had received when making a decision than in protecting collective responsibility, given the impact of the particular decision.
The important point to stress is that the assessment will be made on the particular information in question rather than applying a class-based exemption that will potentially mean that information that should be released to the community is kept confidential.
To demonstrate this situation and to demonstrate how ridiculous class-based exemptions can be, one only need look at the cabinet exemption. Effectively the current act says the community does not have a right to this information. Yet every week, following cabinet meetings, executive documents that are exempt from the current act are released to the public. By that very action, the executive accepts that there are times when it is in the public interest for cabinet documents to be made public. The issue really is this: should it be the politicians exclusively who get to decide or should they be subject to an independent decision-maker to ensure that the community can properly judge their conduct?
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