Jack Straw

Straw claimed the FoI act was not 'particularly well constructed'

Credit: PA/PA Archive/Press Association Images

The Campaign for Freedom of Information (CFOI) has challenged former justice secretary Jack Straw and former civil service head Lord O'Donnell over comments they made to parliament that parts of the Freedom of Information (FoI) act were an "error" and "pernicious".

In a final submission to the justice committee's inquiry into possible changes to the act, CFOI criticised O'Donnell for suggesting that the public interest test relating to the disclosure of internal advice – such as government policy-making decisions – should be removed.

The group said this would "lead to the automatic withholding of all information not specifically selected in advance for publication - regardless of the weight of public interest in disclosure".

Their submission to the justice committee said: "The difficulty in anticipating the categories of information that could be selected for disclosure in advance are underlined by Lord O'Donnell's suggestion that the legal advice on decisions to go to war would be an example.

"Prior to the Iraq war it is most unlikely that this category of information would have been selected for routine publication. It was only the existence of the FoI Act which provided a mechanism for disclosure in the unexpected circumstances that then arose.

"The next major controversy, which may lead to pressure for disclosure of different normally confidential information, cannot now be predicted. The FoI Act's public interest test is capable of addressing such issues as they arise."

The group also responded to suggestions that the FoI act should not apply retrospectively.

Giving evidence to the committee last month, Straw said this was one of the "errors" the former Labour government made when drafting and implementing the FOI act, which he said was not "particularly well constructed". Lord O'Donnell was also highly critical of the fact that the FoI act applied retrospectively

However, the Campaign for Freedom of Information added: "In fact there was good reason for the FoI act to apply retrospectively: it replaced measures that had already been in place for many years and which were themselves retrospective.

"If the FoI act had applied purely prospectively it would have removed a long-established right to earlier material. Ministers were fully aware of this rationale for applying the FoI act retrospectively, as they made clear at the time."

The group also corrected a claim made by Straw last month that the BBC "has a total class exemption for the operation of its internal decision making".

This absolute exemption is not true – the BBC is still covered by FoI in relation to information held "for purposes other than those of journalism, art or literature".

The justice committee has now completed its evidence sessions for the post-legislative scrutiny of the FoI act and is now working on a report.

The Save FOI campaign, which was set up earlier this year to resist attempts to water down the law, said the submission was "very compelling" and "effectively demolishes some of the evidence previously given - particularly by Lord O'Donnell and Jack Straw."

The group added: "Save FOI hope that - with the help of the Campaign for Freedom of Information's submission, and many other submissions by supporters of FOI - the committee's report will not contain recommendations such as charging people to make an FOI request, or for changes that would mean that qualified exemptions become absolute ones.

"We recognise, however, that even if it does, the game is far from over: a select committee does not make or change the law - that is a matter for parliament. Lobbying and campaigning will continue until we are satisfied that FOI has been saved."

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