Among the most controversial exemptions in freedom of information laws is one designed to protect the confidentiality of discussions within governments.
These “deliberative process” exemptions, written in many ways, are often broadly interpreted.
FreedomInfo.org is creating a resource page on this topic. The resource will include examples of deliberative process provisions. A beginning on this, looking at international model FOI laws, is below.
FreedomInfo.org welcomes submissions on national provisions and how they are being interpreted
Efforts both to tighten and loosen these exemptions are under way in a number of countries, often hotly debated. FreeedomInfo.org is seeking to follow these developments.
In the United Kingdom, the government appears to aiming to further protect internal conversations. (See FreedomInfo.org articles here, here and here.) Michael Gove, Secretary of State for Justice, said June 23 that “it is also vital that the conversations between Ministers and civil servants are protected in the interests of good government.” The Information Commissioner’s Office earlier produced detailed reports on the relevant provisions of the UK FOIA. (See a report on Section 35 and another report on Section 36.) See recent post on the topic in UK FOIAMan blog.
In the United States, openness advocates have alleged the deliberative process exemption is being abused to withhold information and made reform a top legislative priority. (Many previous FreedomInfo.org articles.)
Several years ago, Denmark’s Parliament was debating the subject, eventually adopted a more restrictive policy. The Danish parliament May 4, 2013, exempted disclosure of correspondence between ministries and the civil service if a minister is requesting advice. Ministers’ calendars also were made exempt. (See FreedomInfo.org article.)
The fundamental rationale for the exemption holds that officials should have some protected space in which to candidly discuss potential decisions. The prospect that their remarks or policy proposals will be disclosed, even later, will “chill” discussion, inhibiting frank exchanges and thus weakening policy-making.
Comments regarding the underlying rationale for the exemption and what its scope should be also are invited.
Various Versions in Model Laws
There are numerous versions of the deliberative process exemption in model FOI laws.
A model provision prepared for the World Bank Access to Information Policy, but not adopted, was written in 2009 by Toby Mendel on behalf of the Global Transparency Initiative.
GTI model policy May 2009
- The Bank may refuse to disclose information where to do so would, or would be likely to: a. Seriously frustrate the success of a policy, by premature disclosure of that policy. b. Significantly undermine the deliberative process within the Bank by inhibiting the free and frank provision of advice or exchange of views. c. Significantly undermine the effectiveness of a testing or auditing procedure used by the Bank. d. Cause serious prejudice to an ongoing investigation by the Bank.
- The constraints set out in paragraph 42 do not apply to facts, analyses of facts, technical data or statistical information. The constraints set out in paragraph 42(a) and (b) do not apply once the policy has been adopted.
Unlike many policies in national laws, the GTI model policy set limits, stressing nondisclosure was justified only if it would “seriously frustrate the success of a policy” and “significantly undermine the deliberative process.”
It also drew a distinction between opinions that might be due some secrecy and “facts, analyses of facts, technical data or statistical information.”
In addition, the proposed model policy for the World Bank provided a public interest override. It stated: “Notwithstanding any provision in this Section of the Policy, the Bank does not refuse to disclose information unless the harm to the interest protected by that provision outweighs the overall public interest in disclosure.”
The GTI statement to the Bank reviewed a number of national deliberative process exemptions, pointing out that many were “far narrower” that what the Bank had proposed, an eventually adopted. The comment concluded, “At a minimum, the policy should restrict the scope of this exception to opinions, advice or recommendations relating to the formulation of policy, and exclude background studies or statistical information.”
Other Examples
The Model Inter-American Law on Access to Information (in English, French, Portuguese, Spanish), was issued June 7, 2011, by the Organization of American States.
Like other FOI laws, it lays out legitimate exemptions, such as for personal privacy, legitimate commercial secrets. It also says that governments could withhold information if “Allowing access would create a clear, probable and specific risk of substantial harm, [which should be further defined by law] to the following public interests: – 1) public safety; 2) national security; 3) the future provision of free and open advice within and among public authorities.” The model law9 includes a public interest test.
The Draft Model Freedom of Information Law, adopted in 1999 by Commonwealth Heads of Government in Durban, South Africa, takes a somewhat different approach, seeming to protect a great deal of information.
25. (1) A document is an exempt document if it is –
(a) a document that has been submitted to the Cabinet for its consideration or is proposed by a Minister of Government to be so submitted, being a document that was brought into existence for the purpose of submission for consideration by the Cabinet;
(b) an official record of any deliberation or decision of the Cabinet;
(c) a document that is a draft of copy of, or of a part of, or contains an extract from, a document referred to in paragraph (a) or (b); or
(d) a document the disclosure of which would involve the disclosure of any deliberation or decision of the Cabinet, other than a document by which a decision of the Cabinet was officially published.
(2) Subsection (1) does not apply to a document that contains purely statistical, technical or scientific material unless the disclosure of the document would involve the disclosure of any deliberation or decision of Cabinet.
(3) For the purposes of this Act, a certificate signed by the Secretary to the Cabinet or a person performing the duties of the Secretary, certifying that a document is one of a kind referred to in a paragraph of subsection (1), establishes conclusively that it is an exempt document of that kind.
(4) Where a document is a document referred to in paragraph (1)© or (d) by reason only of matter contained in a particular part or particular parts of the document, a certificate under subsection (3) in respect of the document shall identify that part or those parts of the document as containing the matter by reason of which the certificate is given.
(5) In this section, any reference to “Cabinet” shall be read as including a reference to a committee of the Cabinet.
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