The Independent Commission on Freedom of Information was established by the Cabinet Office in July last year to examine the operation of the Freedom of Information Act 2000 (FOI) and whether it required any changes. In October I predicted (and I was not alone) that, bearing in mind the Commission’s restricted terms of reference as well the track record of some of its members, it was likely that sweeping restrictions would be made to the UK’s FOI regime.
Thankfully it seems that the Commission has seen sense. Its recent report says FOI is working well and does not need major changes. It does though make twenty-one recommendations, many of which would enhance the Act:
1. A time limit for public interest extensions
That the government legislates to amend section 10(3) to abolish the public interest test extension to the time limit, and replace it instead with a time limit extension for requests where the public authority reasonably believes that it will be impracticable to respond to the request on time because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information. This time limit extension will be limited to an additional 20 working days only.
2. A time limit for internal reviews
That the government legislates to impose a statutory time limit for internal reviews of 20 working days.
3. Change to Section 77
That the government legislates to make the offence at section 77 of the Act triable either-way.
4. FOI statistics
That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish statistics on their compliance under the Act. The publication of these statistics should be co-ordinated by a central body, such as a department or the Information Commissioner (IC).
5. FOI disclosure logs
That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish all requests and responses where they provide information to a requestor. This should be done as soon as the information is given out wherever practicable.
All the above were also recommended by the Justice Select Committee in its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000 published in July 2012. All were rejected by the Government in its response to that report.
This time, in the Government’s response to the FOI Commission, Mike Hancock MP has said that the Government will issue a revised S.45 Code of Practice setting out what information public authorities with more than 100 full time employees should publish.
6. Senior employees’ information
Public bodies should be required to publish in their annual statement of accounts a breakdown of the benefits in kind and expenses of senior employees by reference to clear categories.
Local authorities already have these obligations in relation to senior staff earning more than £50,000 by virtue of the Local Government Transparency Code.
7: Information Commissioner responsibilities
The government should give the IC (Information Commissioner) responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations.
8. Section 35(1)(a) – Formulation of government policy
The government should legislate to replace section 35(1)(a) with an exemption which will protect information which would disclose internal communications that relate to government policy.
9. Section 35(1)(b) – Ministerial communications
The government should legislate to expand section 35(1)(b) so that, as well as protecting inter-ministerial communications, it protects any information that relates to collective Cabinet decision-making, and repeal section 36(2)(a).
10. Section 35 – Public interest
The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter.
11. Section 35 – Public interest (2)
The government should legislate to amend section 35 to make clear that, in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.
The above 4 recommendations are clearly designed to make it easier for the Government (and the National Assembly for Wales) to withhold information. Other bodies cannot claim this exemption anyway.
12. Section 36 – The Qualified Person’s opinion
The government should legislate to amend section 36 to remove the requirement for the reasonable opinion of a qualified person.
Some of our clients have welcomed this recommendation citing the difficulty of getting access to senior officers to make a decision about complex FOI matters.
13. The ministerial veto
The government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act.
14. The veto again
The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.
15. And again…
The government should legislate so that the executive veto is available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure. Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court. The government should consider whether the amended veto should make clear that the fact that the government could choose to appeal instead of issuing a veto will not be a relevant factor in determining the lawfulness of an exercise of the veto. Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.
16. Guess what this recommendation is about?
The government should legislate to allow the veto to confirm a decision of the IC where the IC upholds a decision of a pubic authority on the public interest in release. This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.
Strengthening the ministerial veto under section 53 seemed to be a “dead cert” (in betting parlance). In March 2015, 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. The Government seems to have accepted the Commission’s recommendations for the time being:
“In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.”
17. Appeal rights
That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law.
Whilst this recommendation will save public authorities money, some commentators (especially journalists) have expressed concern that it hampers appeal rights and makes the appeal mechanism much less accessible than at present to those who do not have the money to instruct lawyers. They have a point; especially when one considers the very real possibility of the government introducing fees for tribunal appeals.
18. Format of responses
That the government legislates to clarify section 11(1)(a) and (c) of the Act so that it is clear that requestors can request information, or a digest or summary of information, be provided in a hard copy printed form, an electronic form, or orally. Where a requestor specifies a specific electronic document format, that request should be granted if the public authority already holds the information in that format, or if it can readily convert it into that format. Where the information requested is a dataset, the requirements at section 11(1A) will apply. The legislation should make clear that the obligations on public authorities to provide information in a particular format extend no further than this.
In my view this is already clear in the legislation and in ICO guidance.
19. The Section 45 code
That the government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate. The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.
20. Vexatious requests
That the government provides guidance, in a revised Code of Practice issued under section 45, encouraging public authorities to use section 14(1) in appropriate cases.
21. More money for the ICO
That the government reviews whether the amount of funding provided to the IC for delivering his functions under the Act is adequate, taking into account the recommendations in this report and the wider circumstances.
Much of the above can be implemented without the need for legislation through a revised/additional Section 45 code of practice and guidance. It’s worth remember that the new EU General Data Protection Regulation (GDPR) will also require changes to FOI when it comes into force in 2018; specifically section 40 which make reference to the Data Protection Act 1998 (which the GDPR will replace).
Labour’s Tom Watson has claimed that the FOI Commission was a waste of time and money and has called on the government to publish its costs. If they don’t he will, no doubt, make an FOI request to the Cabinet Office!
We will be discussing this and other recent FOI decisions in our forthcoming FOI workshops and webinars. For those wanting an internationally recognised qualification the BCS Certificate in Freedom of Information starts on 13th April.