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Home Positive Action Group Our Charter and Objectives Open and Accountable PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 27-31

PAG Submission to Consultation on Freedom of Information Bill - Draft Bill: Clauses 27-31

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Article Index
PAG Submission to Consultation on Freedom of Information Bill
Executive Summary
Draft Bill Clauses 5 to 10
Draft Bill: Clauses 11-14
Draft Bill: Clauses 18-22
Draft Bill: Clauses 27-31
Draft Bill: Clauses 34-42
Draft Bill:Clauses 43-47
Draft Bill: Clauses 48-50
Draft Bill: Clauses 53-67
All Pages

 

Clause 27 – National security

 

(2)       A certificate (a “national security certificate”) signed by the Chief Minister (or, in the absence of the Chief Minister, by the Minister for Home Affairs) certifying that refusal to supply the information (or information of a specified description which includes that information) is necessary to safeguard national security is conclusive evidence of that fact

Comment

The necessity for including the bracketed phrase “or information of a specified description which includes that information” is not apparent.

A refusal to release, or to confirm or deny, is only triggered by the information affecting national security. If that information is contained with information which does not itself affect national security, it seems reasonable to disclose the information which does not affect national security, but withhold that which does.

Neither the UK nor the Scottish Acts include the phrase.

Clause 31 – Investigations and legal proceedings

 (1)      Information is qualified exempt information if it has at any time been held by a public authority for the purposes of –

(a)       an investigation which the authority has power to conduct to ascertain whether a person –

(i)         should be prosecuted for an offence; or

(ii)        prosecuted for an offence is guilty of it; or

(b)       an investigation, conducted by the authority, which in the circumstances which may lead to criminal proceedings being institutued

Comment

The UK equivalent of this states that the exemption only applies if it leads to criminal proceedings which the authority has the power to conduct.

31(1) retains the qualification (“which the authority has the power to conduct”) but 31(2) drops it, perhaps in attempt to simplify. But the simplification extends the exemption substantially. The effect is that while 31(1) can only be invoked by an authority with a statutory duty to prosecute or recommend prosecution, 31(2) can be invoked by any ordinary authority.

An authority which has had a break-in, and computers stolen, could invoke 31(2) although it has no role in relation to instituting criminal proceedings, its just trying to investigate what happened. Is there anything on our CCTV? Was a window broken? These “investigations” could trigger the exemption.

The UK model, which has been departed from here, does not permit this. Only the police, or the Health & Safety Executive, or another prosecuting authority can invoke the equivalent of 31(2).

(3)       Information is qualified exempt information if it is obtained or recorded by a public authority for the purposes of civil proceedings, brought by or on behalf of the authority, which arise out of investigations mentioned in subsection (1) or (2)

Comment

This also widens the exemption beyond what the equivalent UK exemption permits. Now, an IoM authority carrying out the kind of informal “investigations” referred to above can withhold the information if it is contemplating some form of civil action.

The equivalent UK provision only applies where the information relates to the obtaining of information from confidential sources, ie informants. This qualification has been stripped out of the Bill, substantially widening its scope, without obvious justification.



 

Comments   

 
0 #2 RE: PAG Submission to Consultation on Freedom of Information BillGuest 2011-11-01 20:34
I cannot accept that a Crown Dependency should have entirely separate legislation to the UK. The cost of modern governance is beyond that which our island could collect through fair taxation. Therefore, I propose that our Civil Service should be an extention of the UK operation, on some matters.
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0 #1 Peel Commissioners view of Draft FoI Billroy 2010-09-28 11:59
http://www.iomtoday.co.im/news/Peel-board-critical-of-Freedom.6503601.jp
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