Home > Publications > Selected cases — Parliamentary > Selected Cases and Summaries of Completed Investigations - April to October 1998 > Parliamentary Commissioner Act
I lay before Parliament, in accordance with section 10(4) of the Parliamentary Commissioner Act 1967, the following 8 reports of investigations into complaints of breaches of the Code of Practice on Access to Government Information (the Code). Some of these reports were issued by me; others were issued by a Deputy Parliamentary Commissioner under authority delegated by me.
These investigations have highlighted a number of recurring problems about how bodies within my jurisdiction approach requests for information under the Code. Below are some examples.
A request for a document or a file should be considered as a request—unless clearly specified otherwise—for all the information contained in that document or file. It is not sufficient simply to refer to paragraph 4 of Part I of the Code (which says: 'There is no commitment that pre-existing documents, as distinct from information, will be made available in response to requests') and to rely on that paragraph as a reason for refusing requests for information. I take this opportunity to remind departments to apply the principles of the Code to all the information in the documents requested (word by word, if that proves necessary). Policy documents or submissions to Ministers may contain sensitive material which is caught by the exemptions in Part II of the Code, but I have seen documents obtained as a result of investigations by my staff which contained facts and analysis of the facts, which I saw no reason to withhold under a blanket refusal.
Several of the exemptions in Part II of the Code concern information supplied by or obtained from a third party. If such information is the subject of a request, and the department holding it believes that it may be exempt from disclosure, often the most sensible initial course of action is for the department to ask the provider of the information whether they would object to its disclosure. It may be that the provider has no objection to full or partial disclosure. If so, the question whether such information is caught by the Code exemptions may well not arise.
One investigation in this report (A.23/97) raised a new point about the ambit of the Code and my jurisdiction. It concerned a request for information which was caught by a statutory power allowing the office holder personal discretion as to whether or not information should be released. The office holder referred me to paragraph 8 of Part I of the Code, which says the Code cannot override statutory prohibitions on disclosure, and argued that in exercising his discretionary power he was not subject to the principles of the Code. I disagreed. The part of the Code he referred to covers statutory prohibitions on disclosure; and I accept that the Code does not apply to information covered by such provisions. However, the Code makes no reference to cases where statute allows a choice to be made in the exercise of a discretion. The body in whom that discretion is vested may not lawfully fetter its exercise, or accept directions (except from the courts) regarding its exercise. It therefore could not lawfully treat the Code as the exclusive and automatic determinant of its actions. However, it seems to me both right and proper that it should take full account of the requirements of the Code in exercising its discretion, since the Code embodies what is now a settled public policy of giving wider access to official information. I am advised that such an approach would not be unlawful. Failure to take account of the requirements of the Code (together with any other legitimate considerations) would be prima facie evidence of maladministration, and as such investigable by me. It was not necessary to resolve this point for the purpose of the particular investigation; but I think it is important to make my views on it clear for future reference.
M S BUCKLEY
Parliamentary Commissioner for Administration
December 1998
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