Tag: FOI Review

Freedom of Information: The Future

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Is the future bright for Freedom of Information?

In July the Commission on Freedom of Information was established by the Cabinet Office (which now has responsibility for FOI). Its terms of reference are:

“[To] review the Freedom of Information Act 2000 (‘the Act’) to consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice. The Commission may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.”

The Commission will be chaired by Lord Burns, and will comprise the Rt Hon Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson. The motivation/credentials of the panel members have been questioned by some who argue that they are establishment figures who are not interested in openness or transparency. Jack Straw, in particular, has previously called for FOI to be rewritten. The Commission’s, recently published, consultation paper does suggest that it is considering sweeping restrictions to the legislation. The questions seem to be based around the misconceptions that FOI is harming the decision making process and costing public authorities too much. (See Ben Worthy’s analysis in his excellent blog post.)The Commission will publish its findings by the end of November but here are my predictions.

Strengthening the ministerial veto under section 53 is a “dead cert” (in betting parlance). In March the Guardian’s successful challenge to the application of the veto to the disclosure of Prince Charles’ letters to government departments, was confirmed by the Supreme Court. Hours before publication of the letters, Downing Street said David Cameron would to try to build up a cross-party consensus with the aim of guaranteeing that ministers will be able to veto the publication of documents under FOI requests in exceptional circumstances.

It is also very likely that the FOI Fees Regulations will be amended to make it easier to refuse requests for information on costs grounds. In July 2012, the Justice Select Committee published its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000. The Committee concluded that FOI was working well. It had “contributed to a culture of greater openness across public authorities, particularly at central Government level” and “is a significant enhancement to our democracy… [It] gives the public, the media and other parties a right to access information about the way public institutions… are governed.”

The Committee recommended that consideration be given to reducing the amount of time an authority needs to take in searching for and compiling information:

“We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected.”

The Government, in its official response, said that it doubts that much will be achieved through the reduction of the costs limit. Though it was in favour of allowing additional factors to be taken into account in deciding whether the 18/24 hour cost limit has been reached:

“The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.”

So whilst the Committee rejected the suggestion that reading, consideration and redaction time should also be taken into account when deciding whether the 18/24 hour limit has been reached, it could be that the Fees Regulations are amended to allow this.

At present the costs of different FOI requests can be aggregated only where the requests relate to the same or similar information and have been received within a 60 consecutive working day period. The Government may change this to make it even easier to aggregate costs. At paragraph 19 of its response, it stated:

“We will also look at addressing where one person or group of people’s use of FOIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.”

According to the Telegraph an up front fee of up to £20 could be proposed for making an FOI request. This could lead to a large drop in requests as happened when Ireland introduced a €15 charge (which was eventually dropped).

Other matters on the table for discussion in the consultation paper include making it more difficult to obtain public authorities’ internal discussions (or excluding some from access altogether) and changing the way FOI is enforced. The case for strengthening the Act does not seem to be on the Commission’s agenda. The Campaign for Freedom of Information is coordinating the fight against possible restrictions to FOI. Over 140 media bodies, campaign groups and others have written to the Prime Minister.

In a separate move, the consultation paper and the impact assessment on tribunal fees were recently published on the Ministry of Justice website. The deadline for responses ended on 15th September. In future it could cost £100 to appeal, against an Information Commissioner Decision Notice, to the First Tier Tribunal (Information Rights) or the Upper Tribunal (if the case is transferred), and £500 for an oral hearing.

Tribunal fees will have a big impact on the number of challenges to public authority decisions. Overworked FOI Officers may initially see cause for celebration. However, if fewer appeals are heard the quality of FOI case-law on important matters of interpretation will suffer. Consequently application of the FOI exemptions, as well as other provisions, will become more difficult.

Interesting times for FOI Officers (and trainers!).

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops  which are delivered in online sessions and at his public courses.

Changes to FOI : Government Response to Justice Committee Report

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In July 2012, the Justice Select Committee published its report into post-legislative scrutiny of the Freedom of Information Act 2000. Running to more than 100 pages, and considering submissions from a wide range of those who operate the Act, the report is broadly summarised in its first sentence:

“Freedom of Information has been a significant enhancement of our democracy and the Act is working well. “

The Committee largely resisted calls for FOI to be amended fundamentally. It did recommend that the Government should make some (many would say modest,) changes to the FOI regime. The Government has now published its official response to the Committee’s report. It is fair to say that the Government has rejected many of the report’s recommendations. Below is a brief analysis of the main recommendations of the Committee and how the Government has responded: (For another account see the SaveFOI Campaign’s latest blog post. )

1. A Change to the Costs Regime

Many of those that responded to the Committee’s call for evidence, had expressed concern about the sheer cost of dealing with FOI requests (although the basis of calculation of some of the figures seemed highly dubious). The Committee recommended that consideration be given to reducing the amount of time an authority need take in searching for and compiling information:

“We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected.”

However, the Committee rejected the suggestion that reading, consideration ND redaction time should also be taken into account when deciding whether the 18-hour limit has been reached. The Government doubts that much will be achieved through the reduction of the costs limit. It is though in favour of allowing additional factors to be taken into account in deciding whether the 18 hour limit has been reached:

“The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.”

At present, according to the FOI Fees Regulations, costs of different FOI requests can be aggregated only where the requests relate to the same or similar information. The Government may change this to make it even easier to aggregate costs. At paragraph 19 of its response, it states:

“We will also look at addressing where one person or group of people’s use of FOIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.”

2. New Research Exemption

Universities strongly argued before the Committee that there was insufficient protection for pre-publication research under FOI. The Committee took this on board and recommended that section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland under FOISA.

The Government accepts this recommendation. It says in its response (at paragraph 48), that it is minded to introduce a dedicated exemption to cover pre publication research, which would be qualified and prejudice based. However this would be reviewed at a suitable point after introduction.

3. New Statutory Time Limits

At present where a public authority wishes to extend the 20 working day time limit to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit (although the ICO recommends that a further 20 working days is appropriate in most cases). The Committee recommended the 20 day extension be put into statute.

The Government has rejected this recommendation in part. Whilst it acknowledges the importance of internal reviews and consideration of the public interest test being done in a timely fashion, it does not believe that time limits should be enshrined in the Act itself. It believes that these matters are best dealt with through amendments to the S.45 Code of Practice.

4. Disclosure Logs and Names of Requestors

The Committee recommended that public authorities should be required to publish more information about their handling of FOI requests and meeting deadlines. The Government felt that this would be an additional burden on public authorities at any time of financial constraints.

Surprisingly the Committee also recommended that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it. The Government has rejected this recommendation on the basis that, amongst other things, it would risk unfair disclosure of personal data and so breach the Data Protection Act 1998.

5. Section 77 Prosecutions

The Committee recommended a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low. The Committee suggested (at paragraph 121):

“The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.”

The Government has rejected the idea of making the S.77 offence an either way offence and so attracting a higher fine. It proposes though that the 6 month window for prosecution should be triggered when the offence is discovered rather than when it occurs.

6. Fees for Tribunal Appeals

The Committee never considered the issue of charging fees for Tribunal appeals (which are free at present although the Tribunal has a discretion to award costs to either party). Thishas not stopped the Government (at paragraph 24)considering the idea:

“…the Government is keen explore the potential for users to contribute more towards the costs of tribunals. Fees are already charged in some jurisdictions (for example, in the Immigration and Asylum tribunal) and we will examine the scope for extending this approach to other types of tribunal, including the Information tribunal.”

7. Extension of FOI

On the question of extending FOI to the private sector the Committee stated:

“We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.”

The Government, in its response, states that it is continuing consultations with various public sector sector bodies with a view to adding them to the list of public authorities under FOI. These include the LGA, harbor authorities and the NHS Confederation. It is also going to consult 2000 housing associations. Any additions to the list of public authorities will come into effect by Spring 2015. However, the following quote, from paragraph 56 of the Government’s response, will disappoint FOI campaigners and those who think that FOI should be extended to the private sector:

“The Government therefore does not intend, at this time, to legislate to extend FOIA obligations to contractors. In particular the Government is concerned about the potential impact on SMEs, the voluntary sector and social enterprises, but does not think that a minimum contract value threshold for formal inclusion should be adopted given that public interest does not always equate to the size of a contract.”

FOI Update webinar– This and other FOI developments and cases will be discussed in our forthcoming FOI Update Webinar.

FOI Review : What to Expect

Last year the Justice Select Committee, chaired by Sir Alan Beith, launched a call for written evidence for its post-legislative scrutiny of the Freedom of Information Act 2000 (FOI). The Committee invited written evidence on the following issues (although those responding were free to discuss other matters):

  • Does the Freedom of Information Act work effectively?
  • What are the strengths and weaknesses of the Freedom of Information Act?
  • Is the Freedom of Information Act operating in the way that it was intended to?

The Committee has now finished hearing oral evidence. Its website contains more details including dates of hearings as well as uncorrected transcripts of evidence. Whilst much has been written and submitted to the Committee about what changes the Government should make to the FOI regime, some changes are more likely to be recommended by it than others:

1. A new exemption for Frivolous Requests

The Information Commissioner’s Office (ICO) has told the Committee (and a recent conference) that it would be in favour of an exemption being introduced to alleviate the burden of frivolous requests e.g. for zombie invasion plans.

My view is that this is a sacrificial lamb being offered by the ICO to try and deflect some of the recent criticism directed towards it. Public authorities have claimed that the ICO is not doing enough to help them at a time when they are being inundated with nuisance requests that clearly have no purpose or value. However the Committee may feel it needs to go further to address such concerns.

2. A Change to the Costs Regime

Many of those that have responded to the Committee’s call for evidence, have expressed concern about the sheer cost of dealing with FOI requests, although the basis of calculation of some of the figures seem highly dubious. It is likely that changes are made to allow more activities to be included as part of the costs limit of £450/£600 limit (under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004) including perhaps the time it takes to redact exempt information from a document before disclosing the latter.

It seems that the Government is already pre judging the outcome of the Committee’s report. According to a BBC Newsnight report on 5th April 2012, a new fees regime could be introduced to reduce the number of FOI requests. Different tariffs could be used to charge different types of requestors. For more on this read Jonathan Baines excellent guest post for the Save FOI Blog.

3. A new Cabinet Minutes Exemption

The previous Government has on two occasions used the ministerial veto (under section 53) to exempt disclosure of cabinet minutes.  On 24th February 2009 the then Lord Chancellor, Jack Straw, issued the first ever ministerial veto  (See Cabinet Office and Christopher Lamb v IC (EA/2008/0024 & 0029)) when the Tribunal decided to uphold the ruling by the Information Commissioner that minutes of cabinet meetings from 2003 discussing the Iraq War should be disclosed.  On 10th December 2009, Mr Straw did the same again in respect of a decision of the Commissioner (Cabinet Office FS50100665) requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions in 1997.

Dominic Grieve, the Attorney General, also used the veto to block release of Cabinet Minutes relating to Scottish and Welsh Devolution. Recently the Health Secretary, Andrew Lansley, caused controversy when he used the veto to block access to the NHS Risk Register. On each occasion the veto has been used, the Commissioner has issued a report to Parliament expressing disappointment. However recently he has said that if the Government feels strongly about Cabinet Minutes being kept secret then an absolute exemption should be introduced. Bearing in mind what the Prime Minister and Lord O’ Donnel (the former head of the civil service) have said about FOI recently, this is a strong possibility.

4. Other Possible Changes

Looking at the various submissions to the Committee especially those from the ICO, it is also likely that statutory limits for Internal Reviews and the public interest test are recommended to avoid delays in dealing with requests. It may also be recommended that now FOI has bedded in, the role of the Qualified Person (under section 36) be removed so that there is no delay in Refusal Notices being issued where this exemption is claimed.

The Committee is due to report before the Summer Recess of Parliament.

Ibrahim Hasan is doing a web seminar on the changes to the FOI, DPA and RIPA regime to be made by the Protection of Freedoms Act. Click Here  for more information.

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