You want to know a secret? It's a catch-22: Obtaining official information under the new code of practice will not be easy, says Maurice Frankel

FROM this week Whitehall is officially a little more open. Government departments are promising to release information on request under a new Code of Practice on Access to Government Information, supervised by the Parliamentary Ombudsman.

Any relaxation of secrecy is welcome, and anyone who has previously sought information without success should reapply to see if their prospects have improved. However, the chances of obtaining information that the Government is determined to withhold are not good. Unlike a Freedom of Information Act, the code is not enforceable: the ombudsman can only recommend, not compel, disclosure.

The code's greatest flaw is that it does not offer access to actual documents. Instead, we will be given 'information' - letters with answers to our questions. Departments will be able to select the facts that support their case, but suppress the documents from which they are taken. Ask for a report and you may be told to specify the facts from it that you want. Since you have not seen it, the catch-22 possibilities are obvious.

The code looks uncomfortably like a form of parliamentary questions for the general public. We know how they work: ministers are careful not to lie, but happy to mislead. As Lord Tebbit put it: 'Anybody who holds ministerial office has given replies which might lead the questioner to come to a wrong conclusion. Parliament must not be told a direct untruth but it is quite possible to allow them to mislead themselves.'

The Cabinet Secretary, Sir Robin Butler, offered a glimpse of the Whitehall norm when he explained how ministers' denials of talks with the IRA were compatible with the actual written communications and face-to-face meetings: 'It was a half-answer if you like, but it was an accurate answer . . . This was an answer which was true but not complete, not designed to mislead . . . Half the picture can be true.'

The Government says the ombudsman will be able to blow the whistle on misleading answers. But will the ombudsman be able to recognise the significance of apparently minor omissions from a summary - particularly on highly technical subjects such as nuclear safety in which his staff will have no expertise? And will complaints actually get to him? Complainants must first ask the department itself to investigate. They must then find an MP prepared to forward the matter to the ombudsman - a direct approach is not allowed.

What a depressingly deferential, ineffective solution: we cannot see the documents, but must rely on the ombudsman to do so for us - and we cannot contact the ombudsman, but must beg MPs to pass on our complaints.

The code applies only to matters within the ombudsman's jurisdiction, which, unfortunately, has a number of large gaps, including nationalised industries, the police, the security services, personnel matters, departments' contractual and commercial activities, the Bank of England, the Monopolies and Mergers Commission, the Civil Aviation Authority, the Parole Board and the National Curriculum Council.

Then there are the exemptions. Many are unexceptionable: those for disclosures harmful to defence, security, international relations, law enforcement and privacy. But everything to do with immigration, nationality and refugee policy is excluded - a remarkable exception that explicitly permits secrecy even if disclosure would cause no harm to immigration controls. Information obtained during food safety and similar surveillance schemes can also be withheld. This loophole neatly fits the Ministry of Agriculture's penchant for withholding findings such as the contaminantpatulin in apple juice.

On the other hand, the code explicitly allows disclosure where the 'public interest' in openness outweighs any possible harm from releasing exempt information, a potentially far-reaching principle.

Generally, analysis of facts will not be published. The only exception is when the Government announces major policy proposals and decisions - and then it will release only the analysis 'which the Government considers relevant and important', a qualification that speaks for itself. Considerately, the official guidance on the code adds: 'It is not necessary to swamp Parliament and the public by an indiscriminate approach to this requirement.'

The code's defects go further. People will have to pay for information. Departments are still considering their charging schemes. Several suggest that the first one or two hours of officials' time will be free but, thereafter, pounds 20 an hour will be charged. This could kill the scheme for everyone other than large companies. The American Freedom of Information Act waives charges where disclosure is in the public interest. The code does not.

Such fees are not necessary to protect departments from being overwhelmed. The code already allows them to turn down requests that are 'too general', 'manifestly unreasonable' or require 'unreasonable diversion of resources'. For a Government that has spent more than pounds 18m publicising and giving away unsolicited copies of the Citizen's Charter and its offshoots, such punitive charges are a disgrace.

For information seekers, the ombudsman's new role is nevertheless a genuine advance. The Minister of Public Service and Science, William Waldegrave, has secured resources for up to 40 open government investigators - a positive sign. On the other hand, the Government's budget for publicising the code is just pounds 15,000 - so most people will never hear of it. Bringing the code into force on a Bank Holiday during the parliamentary recess will not help.

The ombudsman's recommendations may often be enough: departments will prefer not to be criticised for non-compliance. But if ministers believe that a disclosure will undermine a key policy or reveal that Parliament has been misled, they will certainly resist. Disputes will probably take the form of a courteous, superficially technical, disagreement over the ombudsman's jurisdiction or his interpretation of an exemption. His only remedy will be to report the stalemate to the select committee that oversees his work, and thence to the House of Commons. This means the issue will ultimately be determined on a partisan basis. That is precisely the case for a statutory Freedom of Information act.

As Michael Ryle, the former Clerk of Committees in the House of Commons, put it: 'Committees faced with refusal of information may often be wise to avoid a showdown in which Parliament might well not emerge the winner, given the Government's majority in the House . . . The Government of the day will never be forced to give information required by committees unless it is prepared to do so. It will always use its majority to protect this position.'

The author is director of the Campaign for Freedom of Information.