In 1995, Mec Vannin drew up a detailed policy for Freedom of Information legislation in the Isle of Man. A Committee of Tynwald had been appointed to investigate the matter. The outcome was disappointing to say the least: Walter Gilbey, one of the members, issued a memorandum of dissent to the eventual outcome, which was itself a feeble recommendation that there be a code of practice for Government departments. There is still no freedom of information in the Isle of Man. Indeed, the government is more secretive and evasive than ever.
In addition to this document, Members of
Mec Vannin's committee gave extensive oral evidence to the Tynwald Committee.
It is hoped to archive this evidence on this site in time.
PART ONE - GENERAL PRINCIPLES
1.1. Before making any specific recommendations regarding freedom of information, a philosophy must be established. This philosophy must then be translated into a policy that is practical in any given environment.
1.2. Freedom of information may, at times, conflict with the rights or privacies of the individual or, conversely, enhance them. The Data Protection Act is a fine example of how, from an individual point of view, freedom of information and rights of privacy can be enhanced at one and the same time. It can also be misused, however, to unnecessarily deny access to other information.
1.3. Many countries around the world recognise the need to have freedom of information legislation, be it in terms of governmental or personal records. Such legislation has stemmed from a primary assumption that there is a default right to secrecy. In terms of personal information, this may be so, but in terms of information that is not specific to an individual, the reverse is perhaps true.
1.4. We live in a society which is a collection of individuals. The individual has great importance. The actions of the society affect the life of the individual and vice versa. Accepting the principle of democratic rule, both society and the individual must be represented through a government. This government has a responsibility to all individual elements of that society, and must be accountable for its actions and decisions.
1.5. Further accepting that in a democratic society, all members excluding those who have a specific debar against them should be able to partake in and input to the decision making process, and that natural justice dictates that any individual should be able to access information that affects or relates to them, the default condition for information should be that it is accessible unless it meets criteria to specifically say otherwise.
1.6. Up to this point, only individuals and government have been mentioned, but there are also organisations outside of government, such as clubs, companies and associations that must be catered for in any specific legislation. As much as an individual has a right to privacy in their own affairs, so do these bodies, but in the same way that aspects of an individual's affairs may be deemed public domain, so may the affairs of such other bodies.
1.7. The philosophy can be summed up thus:
a) An individual or body has a right by
default to access information that directly relates to them or will directly
b) An individual or body has a right to maintain, by default, all matters that only relate to themselves as private.
c) The first two principles should only be over-ridden when specific criteria are fulfilled.
d) Whilst respecting b), all matters of government are public domain.
PART TWO - FREEDOM OF INFORMATION IN MANNIN
2.1. Despite having the oldest parliament in the world, rights and freedoms of the individual to question and investigate the workings of the government are thin on the ground. There seems to be an assumption that by electing a representative, the populace abrogate all rights and confer them upon the representative. These representatives then abrogate many of their rights as representatives and confer them upon indirectly elected bodies i.e. the Council of Ministers and the Legislative Council.
2.2. This situation is "paternalistic" (patronising?) rather than democratic. Even accepting the current constitution, and that at some point trust must be placed in an individual to make decisions on the part of many, both in terms of democratic accountability and with reference to the philosophy established in Part One, this situation is incorrect.
2.3. It may be argued by certain quarters that there is no abuse of the system, and therefore there is no need to change it. This is completely fallacious. Human nature is exactly the same in Mannin as in any other part of the world. It must be assumed that there are individuals who have and will abuse positions of authority, and will use confidentiality / secrecy to prevent proof of this.
2.4. Far from seeing a move towards greater freedom of information, as would be expected in an evolving democracy, we see the Data Protection Act frequently being used to deny access to information that should be public domain, while individual rights to privacy are under threat.
2.5. The Council of Ministers meets secretly,
and often acts unilaterally in areas that are the rightful province of
Tynwald as a whole. Whilst members are forced, on many issues, to vote
en-block, the voting within the council is secret.
2.6. Even at local authority level, members of the public wishing to gain information about decisions that affect their lives are frequently denied access to it.
2.7. Individuals and bodies frequently have arguments or applications considered in camera. There is frequently no right to access the proceedings for any appeal. Apart from being in contradiction of natural justice and democracy, this causes suspicion and accusation. Third parties can also be named and misrepresented in these cases, and whereas the primary subject may have a right to access the information, the third party does not.
2.8. The Chief Minister, Mr. Miles Walker, has stated his opposition to records even from 100 years ago being made public. There is no logical reason for this, other than hiding from the public, activities of the governments of that time that could have repercussions now.
2.9. Notwithstanding the comments made in 2.1., elected representatives frequently find themselves denied access to information in the course of their duties, by departments and members of a government of which they are a part. Although members have the right to ask questions, the responding member can sidestep the question, claim confidentiality or, let us be quite realistic, lie. The current uproar in the U.K. House of Commons involving Mr. William Waldegrave and "the necessity to lie" re-inforces this statement.
2.12. Public money is frequently used to
commission investigations and reports for specific departments. Their
findings often remain secret, not just to the public, but to members of Tynwald as well.
2.10. Many candidates in the 1991 General Election stated their concern about freedom of information. There is clearly a perceived need for this outside of Government itself.
2.11. It can be concluded that in terms of government in Mannin, there is a pressing need for freedom of information legislation.
2.12. Moving away from government, what right to secrecy / confidentiality can organisations and individuals claim? Is there any need to know "somebody else's business"? Clearly, if the extent of information access alluded towards above were applied to the individual, there would be a very real sense of "Big Brother". The human need for privacy in our personal lives is well identified. Apart from ideological arguments, behavioural problems can be associated with the erosion of the individual's personal confidentiality. This, in turn, leads to problems for the society as a whole.
2.13. In Sweden, anyone may access the government's central information records to obtain information about an individual's income and other data that we regard as personal. This, combined with many other aspects of Swedish legislation, makes for a totalitarian outlook. The suicide rate in Sweden is popularly rumoured to be high. The Swedish interpretation of freedom of information is not a model to be followed.
2.14. Companies and businesses cannot claim the same degree of protection as the individual in this aspect; they have entered the public domain by incorporation with Limited Liability or similar status. Certain aspects of their activities should, therefore, be open to public scrutiny. At the present time, limited companies must declare their directors and secretaries, along with other information, which is available for public scrutiny. The internal affairs of such businesses, for the greater part, remain just that.
2.15. There are many parties, organisations, clubs etc. that do not fall into any category yet mentioned. The right of free association is an important one and provided that the activities of such organisations fall within the framework of the law, there should be no need for further scrutiny except in the cases where such organisations are dealing with information concerning individuals.
2.16. It can be concluded that in general terms, existing statutes cater for the arguments set out in paras. 2.12. to 2.15. The main deficiencies are in terms of individuals gaining access to information about themselves. Although this has been partially addressed by the Data Protection Act, no provision is made for non-electronically managed data. European legislation is currently being drawn up to address this area, but we should be willing to act of our own initiative in this matter.
2.17. There has been considerable argument in the U.K., and to a lesser extent in Mannin, about freedom of the press. Mec Vannin's policy on the media clearly states its belief in a healthy, independent media. As such, any move to censor or "gag" the press must be viewed with extreme disdain.
2.18. In balance of this, there have been instances in both the U.K. and Mannin where it has been claimed that justice has been prejudiced by media coverage. In view of this, there ought to be some controls over what can and cannot be reported in relation to specific cases before their conclusion.
2.19. Bearing in mind the principles established in Part One, there must never be any reason to prevent broadcasting the truth when not subject to specific and exceptional confidentiality. Some reporting may be extremely insensitive, but providing it is accurate and does not prejudice a specific case, then it must be allowed. By far the best way of curbing over-zealous and insensitive reporting in our own community, is for the public to make their views known to those responsible.
PART THREE - INTRODUCTION TO A POLICY
3.l. Part Two revealed that the major area for concern is that of government information. The following policy is as comprehensive as time allows, and without wishing to be too specific. It may very well be that some conditions of the policy are satisfied by existing law. The intention of the policy part of the submission is to draw guidelines to be satisfied, not to make recommendations for alteration or expansion of existing law, although Part Five deals with specific examples.
3.2. There has been a misconception as to the meaning of "freedom of information" by some parties; it seems to have been mistaken for public participation. Meetings conducted in private may very well be continued in private, but the results of those meetings, e.g. decisions taken, those present, etc., are information.
3.3. There will always be secrecy: Totalitarian regimes have done there utmost to subvert individual freedom, but dissidents and opponents have invariably still managed to secretly organise themselves. We must conversely accept that if those who find themselves in positions of authority wish to conduct secret business, they will. The important element of freedom of information is that, apart from giving access to a large amount of information for which there is no possible need for secrecy, where actions and answers contradict recorded information, those responsible can be made accountable.
3.4. No organisation can be successfully managed without record keeping of some form. It is these records that form the greater part of the information we will deal with. This restates the fact that freedom of information does not necessarily entail more record keeping.
3.5. The following policy intends to convey the spirit of the legislation. Specific terms are not to be interpreted as having specific legal intent.
PART FOUR - A POLICY FOR FREEDOM OF INFORMATION.
4.1. Information includes written records, audio and visual recordings, photographs, and electronically stored data.
4.2. Any person should have the right to access any record that relates directly to them. This would include records held by other individuals or bodies.
4.2.1. There is no need for policing this matter in the same way as the current Data Protection Act is; if a person can demonstrate that they have justifiable cause to believe that information is held about them and is not being disclosed, farther investigation can take place.
4.2.2. This would not give the right to access information concerning other individuals held in the same record; the relevant information would be extracted.
4.2.3. Innocuous information such as telephone numbers, simple names and addresses (when not linked to additional information) and when only kept for the purpose of contacting the person would not be covered by this right.
4.2.4. Exemptions can be made, where to reveal the information could adversely affect a person's well-being or compromise or prejudice a criminal investigation or proceeding.
4.3. Defendants must have the right to access any and all prosecution evidence.
4.3.1. Although this provision is implicit in 4.1., it should be clearly stated so that no exemptions are claimed.
4.3.2. In the U.K., this provision has been used to obtain explicit photographs of crime victims for sale on the underground market. This could be guarded against by only issuing such material to lawyers, or in the case of people defending themselves, only viewed or used under some form of supervision.
4.4. All meetings of members of any public body where decisions are formally taken should be minuted at least to the extent of stating who was present and what decisions were taken.
4.4.1. There is no great hardship involved here: There would be very few occasions indeed when extra paper-work would be required since there can be few meetings where some sort of note is not made. We live in the age of computer technology. The storage of such information in "soft" form is extremely easy.
4.4.2. Public bodies would include all government departments, local authorities, bodies enjoying charitable status and "QuANGOs".
4.5. Any citizen of Mannin would have the right to access any and all such records, provided that it does not infringe privacy or prejudice or compromise an ongoing police or legal matter.
4.5.1. Specific definitions of privacy are required. It should not be that a person is able to take another person's name and find out all about them from government records. On the other hand, surely it is justifiable that if a person wishes to know, for example, the registered owner of a vehicle being used on the public highway, then they can by referring to the record for the vehicle. Similarly, if a person wishes to know who owns a specific piece of property, then they should be able to find out from the land registry.
4.5.2. Individuals' tax records, National Insurance records etc. should remain confidential.
4.5.3. Although money received by individuals from government (such as benefits, grants and loans) is taxpayers' money, and taxpayers have a right to know how their money is spent, to reveal individual details is to compromise privacy. Furthermore, many assistances are means tested, and to know the results of another individual's application would reveal further indications of personal status.
4.6. All government commissioned reports and investigations should become public property upon their completion, whilst respecting section 4.5.
4.6.1. Government departments spend many thousands of pounds on reports, many of which remain confidential not only from the general public, but also from other members of government. This can be used to suppress findings that are not to the liking of a particular person or department.
4.7. The media should have access to the same and only the same information as the general public.
4.7.1. There have been several instances where the media has been criticised for its coverage of court and police matters. There have been subsequent calls, by some, to limit press freedom in this respect. The fact remains that whatever is said in open court is public domain and must not be in any way suppressed.
4.7.2. Any measures directed at controlling the media from reporting (accurately) that which any member of the public can witness for themselves is quite ridiculous. The crux of this matter is whether or not appearances to plead or committal proceedings should be held in open court or in camera. This is an area outside the remit of this report.
4.7.3. There is a case, which is covered by section 4.7. and 4.5., for withholding names of persons helping police enquiries or charged with offences prior to appearance in open court.
4.7.4. The matter of sub-judice is a legal one and it is for the editors of media news to ensure that reporting does not degenerate into speculation, inference or prejudgement. Some of the attempts by certain parties to claim contravention of sub-judice principles have been quite pathetic, but nonetheless have been successful in scaring the media from discussing current affairs. Perhaps there is a need to more clearly define sub-judice, but that again is another matter.
4.8. Only when sanctioned by a suitably qualified person could the default rights to information as defined in the previous paragraphs be over-ridden.
4.8.1. This is necessarily vague. Just who is a suitably qualified person (or persons) in this matter is a matter for investigation in itself.
4.8.2. It will always be claimed that certain
matters must remain confidential "in the National Interest," but if this
provision is used, it must be used under strict supervision.
4.9. Time scales for the retention of various types of information held by a public body should be applied.
4.9.1. Although interesting from an historical point of view, to be able to view the accounts of the Tynwald canteen in 50 years time is hardly necessary. On the other hand, Council of Ministers' meetings minutes will provide useful information to subsequent governments and generations for an indefinite period of time.
4.9.2. This must not be interpreted as meaning that such records must be destroyed; in the event of the establishment of a national archive, such a body should be given the opportunity to save records that are older than their statutory retention period.
4.9.3. Information relating to individuals that is confidential should be destroyed upon that person's death.
4.10. There should be an absolute limit upon the time for which any piece of information held by a public body (other than personal information as covered by sections 4.5 and 4.9) can be withheld from public scrutiny.
4.10.1. Some information relating the murder of J.F.Kennedy are still subject to secrecy in the U.S.A. inspite of the far reaching freedom of information laws there. This cannot be justified.
4.11. No record held by a public body (other than those that are confidential as set out in 4.5) should be destroyed before the public has had an opportunity to view them.
4.11.1. No active part on behalf of the body is required to notify the public of the records' availability. As long as a time-table is established for release and subsequent retention before disposal, it is up to interested parties to ensure they access the information before it is destroyed.
4.12. Finally, there should be some form
of appeal system for those who wish to access information but are denied.
4.12.1. There will always be "grey" areas in any legislation such as this, and to protect privacy, those responsible for information storage will invariably err towards the side of confidentiality. If a party feels they have legitimate grounds for overriding this, then they should have the opportunity to present them.
PART FIVE - EXAMPLES AND INTERPRETATIONS
5.1. The following examples are a combination of actual and hypothetical instances. In each case, it is stated which of the two categories the example falls into. Comment is then made upon the example and how it should be dealt with in reference to Part Four. There is no significance in the order of appearance.
5.2. The Council of Ministers makes a recommendation to the House of Keys (the sale of Manx Radio, for example), but no-one actually knows who, if any, of the Council were against the recommendation. (Actual)
5.2.1. This is in contradiction to Section 4.4.
5.3. An investigation is commissioned by the government into the alleged defects in Ballavargher development. The report, even when completed, is subject to secrecy. (Actual)
5.3.1. This is in contradiction to Section 4.6. Although the contents of the report did become known, it was alleged that this was intact a Contempt of Tynwald, and there is every possibility that it would have otherwise remained secret.
5.4. An organisation funded by private subscription operates in the U.K. and quite probably in Mannin as well, that maintains an employment blacklist. To avoid the Data Protection Act, all records are kept manually (although an illegal electronic database is almost certainly used in practice). No-one can find out directly whether or not they are a subject of this list. (Actual)
5.4.1. This is in contradiction to Section 4.2. Even if the list comprises of nothing but names and addresses, its intent is that of a blacklist and cannot claim exemption through 4.2.3.
5.5. Mr. David Cannan M.H.K. enquires of the Treasury Minister, Mr. Donald Gelling M.H.K., as to indirect financing of Cushag Communications via the government subvention to Manx Radio. Both the Minister and Manx Radio assert that this matter is the private business of Radio Manx Ltd. Eventually, Mr. Gelling relents and reveals the information to the House, but with conditions of confidentiality attached. (Actual)
5.5.1. As a private body, Radio Mann Ltd. are able to primarily claim confidentiality in its internal affairs under Section 4.5., but since the company is owned by the government and it is further suspected that the subvention may be being used in a manner for which it was not intended, Mr. Cannan could invoke Section 4.12. The result of this would depend upon the findings of the appeal system, but it is hoped that the outcome would be very similar to that which actually happened.
5.6. A person charged with an offence is not entirely sure what nature the allegation against them takes, apart from the charge itself. They request, through their advocate, prosecution witness statements from the police, but are denied. Without these, it is almost impossible to adequately defend themselves. (Actual)
5.6.1. This is in contradiction to Section 4.3.
5.7. An individual approaches an organisation and asks if another individual is a member of that organisation. The organisation declines to reveal that information. (Hypothetical)
5.7.1. This complies with Sections 4.2
and 4.5. There is no right of access to another individual's records. Equally,
however, the organisation would be at liberty to reveal the name if there
was no implied confidentiality of membership.
Mec Vannin - Freedom of Information - Page 6
5.8. A person suspects that they are the subject of a police enquiry. They approach the police to find out if this is the case. The police decline to answer. (Hypothetical)
5.8.1. This complies with Section 4.2.4.
5.9. An individual applies to their local authority for a change in policy over a local issue. Their request is denied, but the decision is the result of a departmental meeting rather than an authority meeting. The individual feels that the decision is based upon the use of flawed information, but does not wish to start issuing accusations without knowing the facts. The meeting minutes are confidential, however, and the person is unable to adequately pursue the issue. (Actual)
5.9.1. This is in contradiction to Section 4.5.
5.10. An ex-employee of a company has reason to believe that the company has maintained a record on them, and this has been used to prejudice their search for other work. They approach the company, who denies having the record. (Hypothetical)
5.10.1. If the company does have a record, then it is contravention of Section 4.2. The individual concerned would have to demonstrate to the relevant authorities that there were reasonable grounds for suspicion before any action could be taken. Even then, the likelihood of a successful prosecution in the event of the body being unco-operative with the authorities must be judged to be small.
5.10.2. In the event of an organisation freely admitting that it has a record of ex-employees and that they have been used as references by other organisations, there is no contradiction of this policy providing that the individuals concerned are allowed to view the information. This would, however, allow the individuals concerned to take action under legislation concerning free-association, libel, etc.
5.11. An individual believes that they have been misrepresented by another individual at a D.H.S.S. appeal tribunal. The result is that the D.H.S.S. start issuing threats against the first individual, who is unable to access the minutes of the tribunal since they are confidential to the second person. Consequently, they are unable to correctly address the matter. (Actual)
5.11.1. This is in contradiction to Section 4.2. Since it is fully known who the primary subject of the hearing is, there is no question of a breach of confidentiality in revealing those parts of the minutes that relate directly to the first person mentioned.
5.12. Several individuals appear in open court accused of offences concerning public and gross indecency. Their names are listed by the local media. (Actual)
5.12.1. This does not constitute an abuse by the media since those concerned have appeared in open court, and so their names and charges are public knowledge.
5.12.2. The media received some severe criticism over this matter and it has been claimed that some committed suicide as a result. Some were subsequently found innocent. Whilst the media may be requested to show restraint from a compassionate point of view, it must be firmly re-iterated that as long as these proceedings take part in open court, the press must be free to report them fully.
5.13. A serious crime has been committed and a man is assisting police enquiries. A police spokesman names the man. (Hypothetical)
5.13.1. This is a contradiction of Section 4.7. The police will not reveal such information to the general public, and so it must not be released to the media either (who will, of course, release it to the general public). It could also be deemed to be in contravention of Section 4.2. in that it may prejudice or compromise a legal proceeding.
5.14. An approach is made to government by a private enterprise to acquire a publicly owned asset. The approach was made "in confidence" but an M.H.K. "gets wind" of the approach and asks a question in Tynwald. The appropriate minister refuses to comment. (Hypothetical)
5.14.1. This would be in contradiction
to Section 4.5. unless the information had been subject to classification
under 4.8. The extent of classification would depend upon the individual
case, as judged by the independent party set out in 4.8.
5.14.2. This would not be the case where tenders are invited. This system cannot work unless confidence is maintained up to the closing date.
5.15. An M.H.K. wishes to see the minutes of the last meeting between our own government and another, over an ongoing matter, but is refused. (Hypothetical)
5.15.1. This matter would almost certainly
be subject to Section 4.8. The M.H.K. always has Section 4.12. as a
5.16. The previous examples do not cover all aspects of the policy set out in Part Four; this would require a book, but it is hoped that it shows the spirit of freedom of information in practice.