Part VIII: Miscellaneous and supplemental
Section 74: Power to make provision relating to environmental information.
223.This section provides that the Secretary of State may make regulations to implement the United Nations Economic Commission for Europe (UNECE) Convention on access to information, public participation in decision-making and access to justice in environmental matters, which the UK signed at Aarhus in 1998 (the Aarhus Convention), insofar as the Convention relates to the provision of access to environmental information.
224.The regulations will form a free-standing regime, giving access to environmental information. Section 39 exempts environmental information which is available under the regulations from the main provisions of the Act.
225.The regulations made under the power contained in this section will replace the current Environmental Information Regulations 1992 (SI 1992/3240), as amended by the Environmental Information (Amendment) Regulations 1998 (SI 1998/1447). These regulations implement Directive 90/313/EEC on the Freedom of Access to Information in the Environment.
226.Subsection (3) gives the Secretary of State power to make regulations to implement those articles of the Aarhus Convention which relate to the provision of access to environmental information, or for the purpose of dealing with matters arising from them, or amendments to them.
227.Subsection (4) permits the regulations to include provisions enabling charges to be made in connection with the disclosure of environmental information, and to give effect to any obligations the regulations may impose.
228.Subsection (4) also permits certain provisions of the Act to be applied to the regulations, with modifications. The regulations may make provision for a code of practice to apply to bodies subject to the regulations and for the application of the Information Commissioner’s powers under sections 47 and 48, as modified if necessary, to it. The regulations may also apply, with modifications, to Parts IV and V of the Act (dealing with enforcement and appeals), so that the Information Commissioner enforces the regulations and, as set out in Part V, with the Tribunal, considers any appeals relating to applications for environmental information under the regulations. The regulations may also make provision for any transitional or consequential provisions that are appropriate.
229.Subsection (5) ensures that the regulations made under the section to implement the Aarhus Convention do not apply to the Scottish bodies referred to in section 80.
Section 75: Power to amend or repeal enactments prohibiting disclosure of information
230.This section empowers the Secretary of State to make orders repealing or amending primary or secondary legislation which has the effect of prohibiting disclosure of information under the Act. These orders may remove or relax the prohibitions and they may also make consequential, incidental or transitional provision. Orders may make different provision for different cases and can only be made with the approval of both Houses of Parliament (section 82(2)).
Section 76: Disclosure of information between Commissioner and ombudsmen
231.Subsection (1) allows the Commissioner to disclose to specified ombudsmen any information he has obtained or which has been given to him under or for the purposes of this Act or the Data Protection Act 1998, if it appears to him that the information in question relates to a matter which could be the subject of an investigation by one of the specified ombudsmen under the enactment relating to that ombudsman. The ombudsmen specified are: the Parliamentary Commissioner for Administration; the Health Service Commissioners for England, Wales and Scotland; Local Commissioners (as defined by section 23(2) of the Local Government Act 1974); the Commissioner for Local Administration in Scotland; the Scottish Parliamentary Commissioner for Complaints; the Welsh Administration Ombudsman; the Northern Ireland Commissioner for Complaints and the Assembly Ombudsman for Northern Ireland.
232.In effect, the ability of the Commissioner to disclose information to the three Scottish ombudsmen will be limited to information about matters obtained by or given to him under the Data Protection Act 1998. This is because the Commissioner will not have information under this Act relating to bodies within the jurisdiction of the Scottish ombudsmen.
233.Subsection (2) introduces Schedule 7, which provides for amendments to the relevant legislation to provide that the specified ombudsmen are empowered to disclose information to the Commissioner.
Section 77: Offence of altering etc. records with intent to prevent disclosure
234.This section makes it an offence to alter, deface, block, erase, destroy or conceal records held by a public authority with the intention of preventing its disclosure to an applicant who has made a request for the information and is entitled to receive it. The offence applies to the public authority and anyone who is employed by, is an officer of, or is subject to the direction of, the public authority. A person found guilty of the offence is liable to a fine not exceeding level 5 on the standard scale (currently £5000). The offence cannot be committed by a government department but can be committed by civil servants.
Section 78: Saving for existing powers
235.This section ensures that nothing in the Act limits existing powers of public authorities to disclose information held by them.
Section 79: Defamation
236.This section provides that for the purposes of the law of defamation a disclosure under the Act is covered by qualified privilege, in cases where the information had been supplied to the public authority by a third person.
Section 80: Scotland
237.This section provides that no order may be made under section 4(1) or 5 in respect of the Scottish Parliament, any part of the Scottish Administration, the Scottish Parliamentary Corporate Body or any Scottish public authority with mixed functions or no reserved functions within the meaning of the Scotland Act 1998. The power conferred by section 74(3) does not include power to make provision in relation to information held by these bodies. The Scottish Parliament has legislative competence in relation to freedom of information for these bodies.
Section 81: Application to government departments, etc
238.This section ensures that each government department is a separate public authority for the purposes of the Act. However, that does not mean that a duty of confidence can be treated as arising between one government department and another.
Section 82: Orders and regulations
239.This provides that any power of the Secretary of State to make an order or regulations under this Act shall be exercisable by statutory instrument. An order under each of the following provisions requires affirmative resolution procedure:-
section 5 (designation of further public authorities);
section 7(3) (amending Schedule 1) or (8) (excluded information);
section 53(1)(a)(iii)(to designate a public authority as an authority excepted from the duty to comply with a decision or enforcement notice in accordance with section 53); or
section 75 (power to amend or repeal enactments prohibiting disclosure of information); or
regulations under section 10(4) (time for compliance); or
section 74(3)(power to make provision relating to environmental information).
240.An order under section 4(1) (amendments to Schedule 1 adding an entry) and regulations made under any other provision of the Act are subject to annulment in pursuance of a resolution of either House.
241.An order under section 4(5) (amendments to Schedule 1 removing an entry) has to be laid before Parliament after being made.
242.By virtue of subsection (5), a draft order under section 5 or 7(8) which would otherwise attract the procedure applicable to hybrid instruments will not do so.
Section 83: Meaning of a "Welsh public authority"
243.This section defines a "Welsh public authority" as any public authority listed in Parts II, III, IV or VI of Schedule 1, and whose functions are exercisable only or mainly in or as regards Wales, other than an excluded authority, or any public authority which is an Assembly subsidiary as defined by section 99(4) of the Government of Wales Act 1998. Subsections (2) and (3) provide that an "excluded authority" means one which has been designated for the purpose of this section by order of the Secretary of State, after consultation with the National Assembly for Wales.
Section 85: Expenses
244.This authorises any increase attributable to the Act in expenditure which is payable out of money provided by Parliament.
Section 87: Commencement
245.Subsection (1) provides for the immediate commencement on Royal Assent of:
sections 3 to 8 (the definition of ‘public authority’, power to add bodies to Schedule 1, power to designate further public authorities, defining publicly-owned companies and public authorities to which the Act has limited application, definition of request for information) and Schedule 1;
sections 19 and 20 (allowing the approval of publication schemes by the Commissioner and the drafting of model publication schemes);
section 47(2) to (6) (empowering the Commissioner to carry out his general functions under the Act);
section 49 (requiring the Commissioner to lay reports before Parliament);
section 74 (power to make provision relating to environmental information);
section 75 (power to amend or repeal enactments prohibiting disclosure of information);
sections 78 to 85 (saving for existing powers, defamation, application to Scotland and to government departments, orders and regulations made under the Act, meaning of a "Welsh public authority", interpretation and expenses);
section 87 (commencement);
paragraph 4 of Schedule 5 (enabling bodies to be added to the Table in paragraph 3 of Schedule 1 of the Public Records Act 1958) and section 67 so far as it relates to that paragraph;
those parts of Schedule 6 relating to Schedule 14 of the Data Protection Act 1998 and section 73 so far as it relates to those parts and Part 1 of Schedule 8 (which repeals part of Schedule 14 to the Data Protection Act 1998) and section 86 so far as it relates to that Part.
246.The subsection also provides for the immediate commencement of certain paragraphs of Schedule 2 (with section 18(4) so far as relating to those paragraphs) and so much of any other provisions of the Act as confers power to make any order, regulation or code of practice.
247.Subsection (2) provides for the coming into force two months after Royal Assent (ie on 30th January 2001) of the provisions providing that the Data Protection Commissioner is to be known as the Information Commissioner and those that make consequential changes in related legislation.
248.Subsections (3) and (4) provide that all other provisions must come into force within five years after Royal Assent unless they have already been brought into force, provide flexibility to have different commencement dates for different purposes within the five year period, and allow for savings and transitional provision to be made, including provision capable of having effect after the five year period.
249.Subsection (5) requires the Secretary of State to lay before Parliament annual reports on his proposals for commencement of those parts of the Act not yet fully in force, until such time as the Act is fully commenced in accordance with subsection (3).