30 January 1987 - 01 February 1987

Reconciling Freedom of Information with Protection of the Public Interest in the Modern Democratic Process

Chair: The Rt Hon the Lord Deedes PC MC DL

The Foundation's conference programme was resumed at the end of January. There had been a guest conference a little earlier in January (organised by the Oxford Institute for Energy Studies and conducted largely in Arabic). Ditchley had been cut off by snow for three days during the bad weather, but fortunately the roads were cleared before post-Christmas conference preparations had to be begun in earnest.

The conference on the weekend 30 January/1 February had as its subject "Reconciling freedom of information with protection of the public interest in the modern democratic process". Lord Deedes took the chair, bringing to it his extensive experience of both sides of the equation. During the weekend, Special Branch detectives carried out their raid in connection with the Zircon affair on the BBC's headquarters in Scotland. This made the conference seem perfectly timed. There was almost no mention of the Zircon case at Ditchley, but the relevance of the discussions to the headline news during the weekend was in everyone's mind.

The number of US participants was unusually high, 15 who had crossed the Atlantic plus 4 recruited in the UK. The British number was lower than usual, standing at 14. There were four German participants, one Canadian and one Australian. A French participant dropped out at the last moment. Before the conference began there was a suggestion that it would be too weighted with journalists and others committed to total freedom of information and that there would be too few people present with experience of government. And at the start there was a tendency by some who spoke for government to characterise those who advocated maximum freedom of information as absolutist. This tendency fell away as it became apparent that, on the whole, extreme positions were not being taken. The demand was for a presumption in favour of giving out information rather than a presumption in favour of withholding it; and the discussion concentrated largely on ways of managing the inevitable (and in democratic terms healthy) conflict between the two approaches, and of preventing the friction of this conflict from generating too much political heat.

Several of the Americans took the tough line that it was up to governments to protect their secrets and up to the information media to get at them by any means they could and to publish them if they wanted to. This was a minority view. The majority sentiment, fairly emphatically expressed, was that the information media were just as much subject to the law as any other group of citizens. As regards freedom of information acts, it was agreed that they had produced imperfect and sometimes expensive results; but they had shown that there was a good deal of information which governments could publish without doing any damage to their own or national interests. In general, America was on a learning curve in this field, with the bias heavily in favour of releasing information rather than withholding it. The pragmatism and optimism of the Americans was remarkable.

The Canadian and Australian participants also took the line that freedom of information acts did not provide ideal solutions; but they argued that they were on balance positive in their effects and compatible with Westminster-type parliamentary systems. The Germans for the most part expressed astonishment that freedom of information could be a problem: the Federal Republic was a fully open society where nothing could be kept secret, but this did not prevent it from being secure and prosperous. The British were the ones who had real problems, in the shape of Section II of the Official Secrets Act, which no one attempted to defend, and in the procedural rigidities which have grown up around the doctrine of ministerial accountability to Parliament. There seemed to be no confidence that some more closely drawn formula to protect genuine national interests would soon be found to replace the catch-all provisions of Section II, or that there would be early developments in the parliamentary committee system which might dramatically increase the flow of information from the government to Parliament and public.

There was general agreement that the national interest required some matters to be kept secret. The problem was to find ways of preventing governments from interpreting their own political interests as the national interest. No one had a solution for this, but the consensus seemed to be that the onus should be on governments to justify withholding information rather than on the press or public to argue for its release. In other words, the presumption should be in favour of openness and the exceptions should be kept to a maximum, mostly in the defence field but also in the fields of international negotiation and some aspects of finance. There was some lively debate about the need for confidentiality in the interests of good government, i.e., to protect democratic collegiality and the frankness of advisers. It became apparent that it was all a question of degree, with the internal British debate being the sharpest because British governmental practice is more restrictive than US, German, Canadian or Australian practice. There were some impassioned pleas for openness in the name of democracy, matched by some hard-bitten comments from experienced practitioners in government implying that there was a fair amount of humbug in the air.

The discussion about the impact of the information revolution on the interests and rights of the individual citizen perhaps contributed the most constructive discussion of the weekend. The working group dealing with this aspect of the question set its hand to drafting a sort of bill of rights and managed to achieve a very creditable result, which struck an admirable balance between the good of the citizen and the "good" of good government.

The debates were much richer than this brief account can convey. No doubt the full report of the conference will do justice to its quality. No solutions were found, but stereotyped attitudes were considerably loosened. It was agreed that the reconciliation to which the conference's title alluded would never be achieved and that the existence of a creative triangular tension between government, governed and the information media was very desirable in democratic countries; but the tension could be better managed than at present, and governments and indeed all authorities would find it easier to withhold the small quantities of information which really needed protection if they were more generous with the mass of information whose release could have no adverse effect (quite the contrary) on the national or public interest.

This Note reflects the Director’s personal impressions of the conference.  No participant is in any way committed to its content or expression.

Conference Chairman: The Rt Hon the Lord Deedes PC MC DL
Life Peer (Conservative)


Mr Peter Bayne

Senior Lecturer in Law, the Australian National University, Canberra

Mrs Valerie Adams
Department of War Studies, King’s College, University of London
Mr Tom Baistow
Journalist and author
Mr William Cash MP
(Conservative), Stafford; Partner, William Cash & Co (constitutional and administrative lawyer); Chairman, All Party Parliamentary Committee for Widows and Single Parent Families, Simplification of the Law Group, Centre for Policy Studies; Vice-Chairman, Conservative Small Business Bureau; Secretary, Conservative Parliamentary Committee on the Constitution, All Party Parliamentary Committee on East Africa
Mr Maurice Frankel
Director, the Campaign for Freedom of Information
Mr T M Heiser CB
Permanent Secretary, Department of the Environment
Mr Simon Jenkins
Journalist, The Sunday Times; Member, British Railways Board (Chairman, British Rail Environment Panel)
Mr Paul Johnson
Journalist and author
Sir Tom McCaffrey
Director, Public Affairs, and Special Adviser to the Publisher, Mirror Group Newspapers (1984-86)
Ms Anne Mueller CB
Second Permanent Secretary, Management and Personnel Office, Cabinet Office; Member, Board, Business in the Community; Member, Council, Institute of Manpower Studies
The Rt Hon Sir Patrick Nairne GCB MC
Master, St Catherine’s College, Oxford; Member, West Midlands Board, Central TV; a Governor and Member of the Council of Management of the Ditchley Foundation
Mr Peter Pagnamenta
Head of Current Affairs, BBC Television
Mr Malcolm Rutherford
Assistant Editor, Financial Times
Mr Peter Stothard
Deputy Editor, The Times
Mr John Ward
General Secretary, Association of First Division Civil Servants
Mr Des Wilson
President, National Executive, Liberal Party; Chairman, Friends of the Earth Chairman, Campaign for Freedom of Information
Mr Robert M Worcester
Chairman and Managing Director, Market & Opinion Research International (MORI); Member, Programmes Committee of the Ditchley Foundation

Mr Simon Wade

Co-ordinator for Access to Information and Privacy, Department of External Affairs, Ottawa

Herr Stefan Gaensicke

Head of Information, Axel Springer Verlag, Berlin, and Lecturer, International Institute of Journalism
Herr Robert Leicht
Political Editor, Die Zeit, Hamburg
Ministerialdirektor Dr Herbert Limmer
Head, Auslandsabteilung, Bundespresseamt, Bonn
Herr Hans Joachim Werbke
Deputy Chairman, Berlin Press Club; Representative and Head of Studio Berlin, Norddeutscher Rundfunk (NDR)

Mr Fernand Auberjonois

Writer on international affairs; Member, Association of American Correspondents in London, represents Toledo Blade, Pittsburgh Post-Gazette, Monterey (California) Herald, Columnist, Journal de Geneve and Gazette de Lausanne
The Hon Kingman Brewster
Master, University College, Oxford; Member, Board of Directors, Carnegie Endowment Fund for International Peace; Chairman, International Board of Directors, United World Colleges; Chairman, Advisory Council, the American Ditchley Foundation; a Governor and Member of the Council of Management of the Ditchley Foundation
Mr Lyle Denniston
Supreme Court Reporter, The Baltimore Sum, Legal Commentator, “MacNeil-Lehrer News Hours”, PBS-TV; Contributing Editor, American Lawyer Magazine-, Adjunct Professor of Law, Georgetown University Law Center
Professor Norman Dorsen
President, American Civil Liberties Union; Stokes Professor of Law, and Director, Arthur Garfield Hays Civil Liberties Program, New York University Law School
Dr Bruce Fein
President, Bruce Fein and Associates; Adjunct Professor, Telecommunications and Economics, George Washington University; Supreme Court Editor, Benchmark Magazine
Mr Robert Gellman
Counsel, Subcommittee on Government Information, Justice, and Agriculture, House Committee on Government Operations, US House of Representatives
Mr Robert A Haeger
Mr John Byron Hotis
Senior Special Assistant to the Hon William H Webster, Federal Bureau of Investigation, Washington, DC
Mr Kevin R Jones
Deputy Assistant Attorney General, Office of Legal Policy, United States Department of Justice
Dr Jane E Kirtley
Executive Director, and Editor, The News Media and the Law, The Reporters Committee for Freedom of the Press, Washington, DC
Mr Victor Lasky
Author and Journalist; Member, Editorial Board, American Politics, Member, Board of Advisors, John M Ashbrook Center for Public Affairs, Ashland College
Mr L Manning Muntzing
Partner, Doub and Muntzing (Attorneys), Washington, DC; Chairman-elect, Council of Scientific Society Presidents
Mr Maynard Parker
Editor, Newsweek
Mr Philip H Power
Founder, Owner and Chairman of the Board, Suburban Communications Corporation; Chairman, Michigan Job Training Coordinating Council; Member, Board of Directors, World Press Freedom Committee; member, Advisory Council, the American Ditchley Foundation
Mr Russell M Roberts
Director, Freedom of Information/Privacy Act Division, Office of the Assistant Secretary for Public Affairs, US Department of Health and Human Services, Washington, DC; Founder and President, American Society of Access Professionals; Charter Member, National Association of Government Communicators
Mr Howard Simons
Director, Nieman Foundation, Harvard University; formerly Managing Editor, The Washington Post
Ms Anne B Zill
Freelance writer; President, the Fund for Constitutional Government; Washington Funding Representative for Stewart R Mott, General Motors heir and philanthropist; Co-founder, Chairperson, Women’s Campaign Fund
Mr Mortimer B Zuckerman
Chairman and founder, Boston Properties; Chairman and Editor-in-Chief, US New and World Report; Chairman, The Atlantic magazine; Lecturer in City and Regional Planning, Yale University