The Freedom of Information (Removal and Relaxation of Statutory Prohibitions on Disclosure of Information) Order 2004

Explanatory Note

(This note is not part of the Order)

Section 75 of the Freedom of Information Act 2000 (“the Act”) gives the Secretary of State the power to make an order to repeal or amend an enactment for the purpose of removing or relaxing a prohibition that, by virtue of section 44(1)(a) of the Act, is capable of preventing disclosure under section 1 of the Act.

Section 1 gives any person who makes a request to a public authority for information the right to: a) be informed in writing whether the public authority holds the information of the description specified in the request, and b) if that is the case, to have that information communicated to him. Section 44(1)(a) provides that information is exempt from disclosure under section 1 if its disclosure, otherwise than under the Act, by the public authority holding it is prohibited by or under any enactment.

Article 2 to this Order inserts a new section 154A into the Factories Act 1961. Section 154 makes it an offence for a person to disclose information about any manufacturing process or trade secret that he has obtained in pursuance of powers conferred by sections 148 or 153 of the Factories Act 1961, unless that disclosure is made in the performance of his duty. By section 154A, the offence provisions in section 154 do not apply if the person making the disclosure is, or is acting on behalf of a person who is, a public authority for the purposes of the Act.

Article 3 inserts a new section 59A into the Offices, Shops and Railway Premises Act 1963 (“the 1963 Act”). Section 59 of the 1963 Act makes it an offence for a person to disclose information he has obtained from premises that he has entered in the exercise of powers conferred by the 1963 Act, unless that disclosure is made in the performance of his duty or for the purposes of any legal proceedings, or of a report of any such proceedings. By section 59A, the offence provision in section 59 does not apply if the person making the disclosure is, or is acting on behalf of a person who is, a public authority for the purposes of the Act.

Article 4 inserts a new subsection (1A) after subsection (1) of section 118 of the Medicines Act 1968 (“the 1968 Act”). Section 118 of the 1968 Act provides that where a person discloses to any other person certain information he shall be guilty of an offence, unless the disclosure was made in the performance of his duty. Section 118 relates to information about any manufacturing process or trade secret obtained by entry to premises by virtue of section 111 of the 1968 Act, or to any information obtained by or furnished to that person in pursuance of the 1968 Act. By section 118(1A), the offence provision in section 118(1) does not apply if the person making the disclosure is, or is acting on behalf of a person who is, a public authority for the purposes of the Act.

Article 5 amends section 28 of the Health and Safety At Work etc Act 1974 (“the 1974 Act”). Section 28(2) of the 1974 Act contains a general prohibition on the disclosure of “relevant information”, which is defined by section 28(1)(a) as being information that is obtained by a person under section 27(1) of the 1974 Act, or furnished to any person under section 27A by virtue of section 43A(6) of the 1974 Act or in pursuance of a requirement imposed by any of the relevant statutory provisions. The “relevant statutory provisions” are specified in section 53 of the 1974 Act. Article 5(2) inserts a new subparagraph (f) after subsection (3)(e) in section 28, creating a further gateway for the disclosure of relevant information by a recipient where the recipient is, or is acting on behalf of a person who is, a public authority for the purposes of the Act. A “recipient”, in relation to any relevant information, means the person by whom the information was obtained or to whom it was furnished (section 28(1)(b) of the 1974 Act).

Article 5(3) amends section 28(5) of the 1974 Act so that a person to whom information is disclosed pursuant to the new section 28(3)(f) is not prohibited from further disclosing that information.

Article 5(4) inserts a new subsection (9A) after subsection (9) of section 28 of the 1974 Act, which disapplies the provisions of subsection (7) of section 28 where the person who has obtained information in the exercise of powers under sections 14(4)(a) and 20 of the 1974 Act is, or is acting on behalf of a person who is, a public authority for the purposes of the Act. Subsection (7) of section 28 prohibits the disclosure of information obtained in the exercise of those powers, except for the purposes of: the discloser’s functions; any legal proceedings or any investigation or inquiry held by virtue of section 14(2) of the 1974 Act or for the purposes of a report of any such proceedings or inquiry, or of a special report made by virtue of that section; or with consent.

Article 6 repeals section 5 of the Biological Standards Act 1975. Section 5 provides that a person is guilty of an offence if he discloses any information obtained by him in the course of and by virtue of his membership of or employment by the National Biological Standards Board and which relates to a manufacturing process or a trade secret, unless the disclosure is made in the performance of his office or employment.

Article 7 inserts a new paragraph 5A after paragraph 5 of Schedule 11 to the National Health Service Act 1977 (“the 1977 Act”). Paragraph 5 of Schedule 11 to the 1977 Act prohibits any person who obtains information under section 57 of that Act, otherwise than in connection with the execution of that section and Schedule 11, or of an order made under that section, from disclosing information unless that disclosure is for the purposes of criminal proceedings, or of a report of any criminal proceedings, or with permission granted by or on behalf of a Minister of the Crown. By the new paragraph 5A, the restrictions in paragraph 5 do not apply if the person who has obtained any information as is referred to in that paragraph is, or is acting on behalf of a person who is, a public authority for the purposes of the Act.

Article 8 amends section 49 of the Audit Commission Act 1998 (“the 1998 Act”). Article 8(2) removes the restrictions on the disclosure of information obtained in the course of any study pursuant to any provision of the 1998 Act or of Part I of the Local Government Act 1999. Article 8(3) creates a new section 49A which relates to disclosure of information obtained under the 1998 Act or Part 1 of the Local Government Act 1999 by a person who is, or is acting on behalf of a person who is, a public authority for the purposes of the Act. Such information may be disclosed in any circumstances, including those in which disclosure would be authorised (but for section 49(1A)) under section 49(1), except where disclosure would, or would be likely to, prejudice the performance by such a person of any of his statutory functions. A person to whom section 49A(2) applies who discloses information otherwise than as authorised by subsection (2) is guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum.

Article 9 amends section 20 of the Access to Justice Act 1999, by inserting new subsections (4A) and (4B) after subsection (4) of that section. These provide, in relation to the disclosure of information by a person who is, or is acting on behalf of a person who is, a public authority for the purposes of the Freedom of Information Act 2000, once the period of one hundred years starting at the end of the calendar year in which a record containing the information was created has expired, nothing in section 20(1) of the Access to Justice Act 1999 shall prohibit the disclosure of information.