Freedom of information rules diluted, claimTories
THE Welsh Government has been accused by the Conservatives of quietly scrapping a code of practice that made it harder to prevent the release of information that could cause political damage.
Before the Freedom of Information Act (FOI Act) came into force in 2005, what is now known as the Welsh Government had a Code of Practice on Public Access to Information which went further than the Act itself.
The code had a “substantial harm” test, which meant that if there were concerns among ministers or civil servants that releasing information could be damaging to the public interest, it would be necessary to demonstrate that doing so could result in substantial harm.
Such a test was not in the Freedom of Information Act, and when he was First Minister Rhodri Morgan asserted on several occasions that his administration was the most open in the western world.
We asked the Welsh Government whether the substantial harm test was still being applied to current information requests.
We were told: “The original Code of Practice on Access to Information was replaced in 2014; this was noted in a Cabinet decision report at the time. The ‘substantial harm’ test was taken out under our new code because it duplicated the ‘prejudice’ test that is already set out in the FOI Act.”
The Cabinet decision report said: “The First Minister has agreed to replace the Code of Practice and to change the internal administrative process for the handling of FOI requests categorised as low-risk.”
The UK’s most respected expert on the release of official information did not agree that the “prejudice” test gives citizens rights as strong as the code’s “substantial harm” test. Under the prejudice test, harm created by releasing information must be “real, actual or of substance”.
An explanatory note from the Information Commissioner’s office states: “The disclosure must at least be capable of harming the interest in some way, ie have a damaging or detrimental effect on it. If the consequences of disclosure would be trivial or insignificant there is no prejudice. However, this does not mean that the prejudice has to be particularly severe or unavoidable.”
Maurice Frankel, director of the campaign for Freedom of Information for more than 30 years, said: “The substantial harm test required a greater degree of harm before disclosure can be prevented than the prejudice test.”
Leader of the Welsh Conservatives Andrew RT Davies said: “Whatever happened to the relentless pursuit of openness and transparency once promised by Rhodri Morgan’s Labour government?
“This is a clear dilution of the standards once applied to judging FOI requests, and another example of a government running away from scrutiny.
“We have ministers literally walking away from difficult questions [a reference to Health Secretary Vaughan Gething walking out of an ITV Wales interview last week] and now there is clear evidence of the Welsh Labour Government making it harder for the public to obtain information.
“The FOI Act exists to make governments more accountable to the people they serve, but we’ve always gone further here in Wales. Why change that now?.”