A Critique of the Freedom of Information Act 2000 - Essay Example

Introduction Over the years knowledge has always served as an instrument of empowerment. Meanwhile scholars like Francis Bacon remain convinced that the cardinal element of this power in knowledge lies in the possession of information. The distinction here is that information in its absolute form does not amount to power it is the possession, use and control of this information that creates the empowerment. In the light of this, civil society organizations being fully aware of how the possession of information in the citadel of political institutions has created ineffective imbalances between the political elite and the citizenry took up a massive campaign to reverse the trend. A campaign that finally resulted in the birth of the Freedom of Information Act 2000 on January 1, 2005. Notwithstanding these significant success chucked, a few years down the line the Act has generated mixed feelings and also generated unprecedented controversies. It is against this background that the central focus of this essay will be to conduct an exhaustive analysis of the most contending issues in the Freedom of Information Act 2000. Some observers are of the opinion that the innumerable exemptions in the Act have rendered it so feeble that it barely serves the purpose for which it was enacted. Whilst on the other hand, another school of thought holds a completely contrasting view of the Act as being an instrument that is lavishly granting arbitrary intrusive powers that are by themselves self-destructive; they primarily threaten social cohesion. What is the Freedom of Information Act 2000 The government of the United Kingdom enacted and implemented the Freedom of Information Act 2000 through her parliament to create the platform for individuals, institutions and organizations to be bestowed with the right to demand relevant information from public institutions. It should be noted that the enactment of the Act is fundamentally a fulfillment of the Labor Party's election campaign promise during the 1997 general elections. Basically, the Freedom of Information Act is part of the general legal system that already has a number of legislations that boarder on the rights of information. They include among others the Common Law of Confidentiality, the European Convention on Human Rights and the Data Protection Act 1998. Essentially, the legislation as implemented in the United Kingdom1 seeks to serve citizens within the broader framework of both the parliament of Scotland and the parliament of the United Kingdom. In Scotland it is called the "Scottish Act 2002" whilst the name remains unchanged in the United Kingdom. It became imperative to structure the Act to be in consonance with the juridical and public regulatory system in Scotland as means of ensuring the workability of the Act across geopolitical areas; in Scotland for instance, the parliament has an enormous control of the majority of public institutions making it thus prudent to make realistic adjustments to accommodate this difference, hence a second legislation dubbed the "Act of the Scottish Parliament" was enacted to bridge this gap. It is in many ways very similar to the main Act (The Freedom of Information (Scotland) Act 2002). Meanwhile the Freedom of Information Act is limited in its application to institutions and bodies that are out of the legal and geographical jurisdiction of the United Kingdom; they include territories abroad as well as crown dependencies. Taking cognizance of the sensitive nature of the Act the government was convinced that the most prudent to manage the process is to adopt a gradualist approach to guide the implementation process. Consequently, the Act was implemented in phases culminating into the tentative Act that guaranteed access to public information been eventually enforced on January 1, 2005. A look at the Act shows well over 100, 000 public institutions that have being listed as being eligible to release information to any individual, public interest organisation or institution (see Brooke, 2005 for detailed presentation). What Purpose does the Freedom of Information Act 2000 serve Like all legislations the Freedom of Information Act 2000 places or enjoins public institutions to come out with pragmatic programmes that will ensure the regular publication of vital information concerning the institution that will be of interest to the public. Some of the information that can be released includes financial reports2. One of the main exemptions spelt out in the Act has to do with those aspects that have already being catered for in the Data Protection Act 1998. Under the Data Protection Act 1998, patients maintain an exclusive right to their records being withheld from unauthorized third parties outside the domain of their treatment process. Going by this, it is glaring that the Freedom of Information Act is limited in its scope to influence some aspects of the present regime. It therefore questions the fundamental premise upon which the Act is standing on. On the other it is somewhat understandable if the deliberate withholding of a patient's details is advised on the question of confidentiality (Adshead, 2005). It is common knowledge that as part of medical ethics and norms health professionals have an obligation to maintain the confidential details of their patients3. Once again in this sense the Act is rendered impotent, however the revealing contrast made by Draper & Roger (2005) presents more insight into the blur aspects surrounding the implementation of the Act. They argue that confidentiality is not an absolute provision under the tenets of the Act, which means there are justifiable instances that can warrant the overruling of this provision. It is especially so if the case in question has to do with public interest. The Act stipulates that all requests for information should be honoured within a time frame that does not exceed twenty working days. Under isolated cases the period can be extended under an agreed arrangement entered between the individual or institution requesting the information on the one hand with the institution that possess the requested information. The Working Dynamics of the Act Arguably, the Act has clearly spelt out all the rights under which an individual or institution can legitimately request information from a public body coupled with the circumstance under which these requests can be upheld as well as overruled. As stated in the opening part of this essay, the central drawback to this Act lies in the numerous exemptions that have being outlined in the Act. Another absurdity lies in the chosen criteria to define what constitutes both the absolute and qualified exemptions4. One thing remains certain-despite all the glamour and pageantry that heralded the enactment of the Freedom of Information Act 2000, the legislation by itself can be defined by the exceptions it recognizes as much as the purpose it is intended to serve. To illustrate this point, the Act stipulates under one of the numerous absolute exemption clauses that a public official reserves the right under the Act to take one of the following actions: 1) Utterly deny access to the information 2) Choose not to disclose the information requested 3) Neither deny nor confirm the presence of such an information (Information Commissioner 2005). The public official that takes any of the following actions can justify such a position granted he or she has good reasons to believe that the disclosure of such an information will amount to a threat to the public good. . Come to think of the confidentiality question again, there is no strong evidence to explain why a piece of information that is purportedly delivered in a confiding circumstance should be lumped under the definition of absolute exemption. Using the European Convention as the reference framework, there is no mention of confidentiality as an absolute entity worth receiving an exemption (Tyrer, 2005). Suffice to cite the infamous case of "W, v. Edgell (1990)" in which a doctor was discharged off charges of wrong doing when he disclosed private details of his patient to police detectives. The primary reason for the doctor's action as gathered from the case was essentially because the doctor had verifiable evidence to the effect that his patient in view of his inherent violent nature was a threat to public tranquility. Conclusion In view of all these unresolved inconsistencies contained in the Freedom of Information Act, the essence of the noble Act has become steadily diluted. Nevertheless, the Act is still having a firm grip on the functional effects, resources and decisions of those at the helm of affairs at public institutions or bodies. Also within this context, it should be acknowledged again that all activities relating to the possession, processing, control and dissemination of information represents an undeniable foot on power. This therefore explains why the Freedom of Information Act 2000 is there "to make provision for the disclosure of information held by public authorities or by persons providing services for them" Regrettably, looking at the Act retrospectively there is no compelling evidence to prove that it has entirely met the original purposes it was intended to serve. . Reference: Adshead, G. (2005) History is bunk. Invited commentary on Re-evaluating confidentiality. Advances in Psychiatric Treatment, 11, 123-122. Brooke, Heather (2005). Problems at the Information Commissioner's Office. Open Government Journal, Vol. 1, no.3. Department for Constitutional Affairs (2004) The Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. London: Stationery Office. http:// www.actnow.org.uk/SI3244.pdf Department for Constitutional Affairs (2005) Guidance on the Application of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. London: Stationery Office. http://www.dca.gov.uk/foi/feesguide.htm Draper, H. & Rogers, W. (2005) Re-evaluating confidentiality: using patient information in teaching and publications. Advances in Psychiatric Treatment, 11, 115-121. Information Commissioner (2005) Freedom of Information Act Awareness Guidance No. 1. Wilmslow: Information Commissioner's Office. http://www.informationcommissioner.gov.uk/cms/DocumentUploads/AG%201%20persnal%20info.pdf NHS Executive (1997) Report on the Review of Patient-Identifiable Information (Caldicott Report). London: Department of Health. R. v. Department of Health, ex parte Source Informatics Ltd [2000] LLR 76. W. v. Edgell [1990] 1 All ER 835 Shaw, G. B. (1987) The Doctor's Dilemma. London: Penguin Books. Tyrer, P. (2005) The ethics of confidentiality in research. Invited commentary on Re-evaluating confidentiality. Advances in Psychiatric Treatment, 11, 122-123. Wood, Steve, "A Year of Openness in Government." Retrieved on November 14, 2008 on http://news.bbc.co.uk/2/hi/uk_news/4616610.stm The Freedom of Information (Scotland) Act 2002 (Commencement No. 1) Order 2002 Accessed from http://www.opsi.gov.uk/legislation/scotland/ssi2002/20020437.htm Read More