Let freedom reign

3rd November 2000 at 00:00
The Swedes got theirs in 1766, the United States 200 years later. But a Freedom of Information Act is only just making its way on to our statute book. John Hall unravels the implications for colleges

What is the new Act?

It is a ground-breaking piece of legislation in a country which has always operated a culture of protecting confidentiality. Compared with citizens of the the United States, where the right to information is enshrined in statute, the British have relied on common law to withhold crucial information.

The new Act will create a duty on public authorities - a wide definition, this - to provide information where requested. There is a corresponding right for members of the public to receive such information. Such rights and duties will now be embedded in law, rather than resting on administrative codes of practice.

The fundamental provision is the right of any person to be informed in writing by a public authority whether it holds specified information and, if so, to have that information communicated. The authority may demand a fee and ask the inquirer to provide sufficient particulars so the information can be found. The authority is not obliged to comply if it considers the cost of compliance would exceed an "appropriate limit" prescribed by the Secretary of State or if the request is vexatious or repeated. In certain cases, the information will be exempted from disclosure under the new Act. The Act will also make important amendments to the Data Protection Act 1998 by extending the rights of access and data accuracy to all "personal information" held by public authorities.

It also changes the name of the Data Protection Commissioner to the Information Commissioner, responsible for enforcing the new law.

When will it become law?

The Bill was first introduced into the House of Commons in November 1999 - a real marathon of legislation! Its progress has been slow and stormy but it is expected to complete its passage through Parliament during the current session. Nobody can say when this will be because of the likelihood of an election being called during that time, but the Act was a Labour manifesto commitment.

Are colleges affected?

Yes. All further education colleges and designated institutions are classified as "public authorities", together with other educational bodies such as maintained schools, public-funded universities, the Department for Education and Employment, the funding councils and other institutions such as the New Deal Task Force and the Education Transfer Council.

The Secretary State of State can bring other bodies under the scope of the act, if they exercise public functions or have contracts with public bodies, but it remains to be seen whether private sector providers and contractors will be made subject to the Act's provisions by ministerial order.

What happens if companies are owned by colleges ?

They will also be covered by the Act, provided that they are wholly owned. It is expected that representative bodies such as the Association of Colleges, which are owned by member colleges, will also be covered.

Can colleges be exempted?

Most exemption categories will not apply to colleges. Access to information can be denied if disclosure of it would serve to prejudice security, international relations or the ecoomic interests of the country.

However, there are five exemptions which are likely to be relevant:

* Where the information is "personal" and its disclosure would breach the Data Protection Act * Where it was provided to the college in confidence * Where disclosure is likely to prejudice the commercial interests of the college or any other person, or the information is a "trade secret" * Where, in the reasonable opinion of a qualified person, disclosure is likely to prejudice the "effective conduct" of the college. In practice, if the request for information relates to the college's finances or administration, such a person is probably the clerk to the corporation * Where information relates to internal investigations and proceedings.

Why has the Act attracted so much opposition?

Freedom of information campaigners believe the new law does not go far enough in making a general presumption that information should be disclosed unless there is a good reason to prevent it. They have criticised the number of exemptions. The Confederation of British Industry, on the other hand, has expressed concern that the Bill gives public bodies too much freedom to release information about business partners to the public.

It wants a statutory right for companies to be notified in advance of any release of information which might affect them.

How will colleges be affected by the Act?

College managers can take comfort from the extent to which the original Bill has been watered down and from the possibility of having up to five years to comply with the Act. Although it is difficult to predict what requests for information will be made, they are likely to relate to:

* References which have been supplied to colleges to support student applications, reports on students during their college career, students' results and student references written by staff for job or further course applications * Internal reports on students and personal details held on policy files or in loose papers * Comments of examiners recorded separately from the mark-sheets and not written on the scripts * Personal data on staff similar to information requested on students * College governance and management, including financial information, planning and policy documents, board and committee agendas, minutes and supporting papers, including those relating to commercial contracts, internal audit, risk management and complaints * In each of these cases the college will need to consider carefully whether an exemption applies and, depending on the circumstances, whether the public interest in disclosure outweighs the public interest in maintaining the exemption.

Will the new Act affect relationships with the private sector?

Probably yes. Companies which have regular commercial dealings with public bodies are likely to be wary of the new culture of openness. They are likely to be more concerned about what information is given to colleges and to protect information of a sensitive nature by introducing undertakings of confidentiality into contracts. The irony is that the Act is likely to persuade many companies to manage the giving of commercial information to public authorities as tightly as information which is given to the press.

John Hall is head of education law at Eversheds, solicitors, London EC4

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