Positive Action Group - Possan Jantys Jarrooagh

Open, accountable government, rigorous control of public finances, and a fairer society for all.

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Open and Accountable Government

Our first aim as declared within our charter.

Freedom of Information - February 2008

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PAG has made a submission to the government on Freedom of Information.


Chief Secretary’s Office
Government Office
Buck’s Road

28th February 2007

Dear Sir

Access to Government Information – Preliminary Public Consultation

Positive Action Group’s formal response to the above is attached. Our submission is framed around the consultation document’s ‘Issues for Consideration’.

We note that at Annex 2 reference is made to the United Kingdom F O I Act. We therefore assume that the intention is for the UK Act to be the basic model for future I O M legislation.

However, we suggest that elements of the Scottish F O I Act are also relevant. In particular the Scottish concept of ‘substantial prejudice’, which can be interpreted as ‘substantial harm’, ought to be used in drafting the Act, rather than U K Act test of ‘harm’.

The incorporation of exemptions from public scrutiny is the most controversial and critical aspect of any FOI legislation. It goes to the heart of whether the legislation is truly open and fair. ‘Substantial prejudice’ is a far more robust test in allowing qualified exemptions and more clearly benefits the safeguarding of public interest whenever access to information is requested.

Successive Island administrations have stated their commitment to open government. The existing Code is a worthwhile stepping-stone to more openness in government.

However, the lack of access to information in all governmental areas needs redressing urgently,so that all bodies involved in the provision of services at public expense (local authorities, public
boards, statutory entities ….etc.,) require to be covered by the legislation.

P A G strongly believes that a F O I Act will send out the clearest of messages from the government to the public that there is now adequate legislation to substantiate that claim and applauds the current consultation process.

In the event that further developments regarding FOI come to light during your consideration of this matter, we will write to again.

Please regard this letter as part of our submission.

Yours faithfully


W Roger Tomlinson



‘Access to Government Information – Public Consultation’

The Submission of POSITIVE ACTION GROUP to Preliminary Public Consultation.

A. Introduction
1) Positive Action Group ( P A G ) fully supports the introduction of an effective Freedom of Information Act in the Isle of Man.

2) The Consultation Document’s opening paragraph states that the existing Code of Practice ‘should be revised and updated prior to it being placed on a statutory basis’. This could be a sensible interim option, providing it does not extend the time-scale necessary to introduce a proper F.O.I. Act to establish a statutory right to information. However, P A G considers that certain revisions to the Code are necessary.

B. Issues for Consideration
1) Exemptions (Para 2.1)

a) The over-riding principle of public interest should be explained and adopted i.e. the general public interest is in the disclosure, not the withholding, of information.

b) A distinction between absolute and qualified exemptions is required. At present the Code’s public interest test applies only to those exemptions that expressly incorporate a reference to the harm or prejudice which might be caused by disclosure.

c) Absolute exemptions should be scrutinised in order to reduce the number Examples :

  • Exemption 4(c) could be qualified, as per U K Act
  • Exemption 5 – no equivalent in U K Act
  • Exemption 10 : In the Code, Exemption 10 has no explicit harm test (and is therefore not subject to the public interest test). The equivalent exemption in the UK FOI Act is subject to a public interest test.
  • Exemption 11 : It is not clear whether the reference to disclosure which could be‘misleading’ in Exemption 11a constitutes a harm test or not.

d) The test applied under the Scottish F O I Act is one that would ‘prejudice substantially’. PA G proposes that a test of substantial prejudice equivalent to ‘substantial harm’ is a more appropriate test rather than ‘harm’

2) CoMin Minutes / Internal Papers (Para 2.2)

a) Keeping proceedings of CoMin confidential indefinitely is not justifiable. The U K automatically releases Cabinet papers after 30 years and will release upon an F O I request dependent on the balance of public interest. CoMin papers are a source of historical heritage and it is not reasonable to withhold them from scrutiny indefinitely. With a F O I Act the statutory prohibition could be removed and CoMin proceedings made subject to that Act, in the same way as other material.

b) P A G welcomes the proposal for government internal information to be made public

c) Internal Agendas and Minutes should be made available under a F O I Act, unless the
public interest in withholding them outweighs the public interest in disclosure.

3) Retrospection (Para 2.3)

a) The existing Code of Practice is fully retrospective. Any legislation should provide for this, as otherwise it would remove an existing right.
b) The principle of retrospection should apply to all government information. However, a scheme of phased-in retrospection may be acceptable for local authorities and similar bodies. This would enable them to adapt to the requirements of the legislation over a number of years.

4) Information Commissioner (Para 2.4)
The appointment of an independent Information Commissioner is essential. Initially, PAG believes that this role could be combined with that of Data Protection Supervisor in the Isle of Man. However, a review of the effectiveness of the initial structure should take place within 5 years.

5) Timescales (Para 2.5)
Immediately upon receiving a FOI request, the public authority should acknowledge receipt of the request in writing. It should also indicate when a full response will be issued. The maximum response time should be 15 working days. The Scottish FOI Act does not allow extensions to this period and this is desirable.

6) Charges (Para 2.6)

a) No charge should be made for simple requests. A clear charging structure should be established for more complex requests. Charging must not be used to create a barrier to discourage requests from ordinary
citizens. There should be no additional costs.
b) The charging structure should be unambiguous and transparent and not prohibitive. Charges should not reflect the full cost of providing the information, as PAG believe this would deter people of modest means from protection under the Act.
c) Refusal of vexatious requests is reasonable but not any other category. The U K Act does not allow the refusal of unreasonable requests.

7) Scope (Para 2.7)
P A G believes strongly that any F O I Act should apply to:

  • All public authorities within both central and local government
  • Other public bodies and agencies carrying out a public function
  • Other agencies and organisations contracted to undertake public service provision

8) Parliamentary Issues (Para 2.8)
PAG believe that politicians should be able to make FOI requests and should not be in a worse position than any other requester. Where parliamentary questions are asked, iinformation should not be withheld unless it can be justified under provisions of the FOI Act.

9) ‘Who’ can make requests (Para 2.9)
Access should be allowed to anyone, anywhere to request and receive information.

C. Conclusion

P A G recommends the early introduction of a Freedom of Information Act in the Isle of Man. We understand that 66 other jurisdictions have such legislation. We believe that the ‘right to know’ is an integral part of a modern democracy and a sign of a strong, self-confident nation.We believe it a contradiction to extol the concept of ‘Freedom to Flourish’ and yet not have ‘Freedom of Information’.

Many practical obstacles will have to be overcome and these will require a committed approach in order to reap the subsequent long term benefits. P A G supports and welcomes the public consultation exercise. We believe it will positively contribute to the introduction of sound, effective legislation.


Chair P A G




Freedom of Information Act 2015 receives Royal Assent

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That was the announcement given at the start of June Tynwald but no celebrations yet, as before the public can make use of it, an Appointed Day Order is required. So watch out for that!

Also remember to start with FOI requests can only be submitted to DEFA and The Cabinet Office.

In the meantime to find out information from the rest of government we must resort to the 1996 Code of Practice on Access to Government Information.

That's what one PAG member has recently done to the Department of Infrastructure - here it is:


News on legislative changes

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What satisfaction there was in October 2007 when Tynwald received the Government Strategic Plan 2007 – 2011. Three items from P A G’s Charter were listed in the Legislative Programme. These were Bills for:

  • Access to Information
  • Ombudsman
  • Auditor General

All for introduction by July 2008. Great news we thought, but how naive we were as earlier on the same day a question had been asked of the Attorney General about his Chambers workload. He admitted:

‘The legislative programme contained within the Government’s Strategic Plan shows, according to my calculations, some 58 new Bills which should be introduced before July of next year. That is clearly an impossible task......... ’

Seven months have gone by without comment from the government that the proposed legislation is clearly an impossible task. The Chief Minister was asked by Peter Karran (May Tynwald) about progress of a Freedom of Information Act. In a very short exchange, with no hint of an apology Mr Brown answered:

‘As the Hon. Member knows, the Government’s Strategic Plan, received by Tynwald Court in October 2007, includes a commitment to provide the public with a statutory right of access to Government information In keeping with that commitment, an Access to Information Bill is currently in the drafting  process and is scheduled for introduction into the branches in the legislative year 2008-09, sir.’

When pressed about timescale Mr Brown said:

‘I am not able to give that undertaking at the moment, Mr Deputy President, as there is a considerable amount of work to be done on this, and also, of course, we will want to ensure, as far as we can, that the Bill, when it is presented to the House, is in fact in the format that we believe is appropriate for the Isle of Man.’

He went on to say:

‘As far as I am concerned, my administration has been as open as any, if not more open, in terms of some changes that we have made. I have nothing to hide from the public. I am quite happy that information is made available to the public. In fact, that continues to happen. We do not need legislation to make available to the public information that is right for them to see.  The legislation is important: it has been given priority by the Council of Ministers. It is a substantial piece of legislation and a lot of work is going on.’

‘There have been problems, as Hon Members know, in the changeover of staffing within HM Attorney General’s Chambers. However, the work is ongoing and, as I say, it is the intention of the Council of Ministers to hopefully introduce this Bill into the branches in the legislative year 2008-09.’

What confusion and contradiction!

A promise from Government regarded as ‘an impossible task’ by the Attorney General.

The Chief Minister saying that the legislation is not actually needed and yet at the same time regarding it as important and a priority.

We may therefore see this piece legislation sometime in the next 14 months, but that’s only “hopefully” according to Mr Brown.

We surely know what that get out clause means!



Ombudsman News October 2007

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In the October 2007 sitting of Tynwald John Houghton asked again about the introduction of an Ombudsman.

Although the answer was positive, it should be noted that,in answering another question the Attorney General stated that it was no exaggeration to say that his Chambers are completely overloaded with work, with 58 Bills to be drafted before July 2008.#mce_temp_url#

Chief Minister Brown has issued information to members of Tynwald in response to a Manx Radio interview P A G had on 'Morning Mandate' (10 July 2007) and on 'Talking Heads' the following day. This may be viewed here.

It is encouraging that P A G gets recognition, dare one say acceptance, by the Minister. It's interesting that Petitions for Redress of Grievance will continue and also that an Auditor General is promised.


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