FOIA – “Post-Legislative Scrutiny”
What on earth does this mean – you may ask! In a recent speech, the Justice Minister Lord McNally explained “now that the Act has been in operation for nearly seven years it is right that it is examined to see how well it is operating”.
The issue is one of balance – particularly in view of the current economic climate, which has seen public bodies suffer the effects of deep public spending cuts. The cost of compliance with FOIA will need carefully to be measured against the benefits of the transparency which it is intended to ensure and this review procedure, as it attempts to create the right balance, will clearly have an impact on the future development of freedom of information in the UK. Public authorities across the public sector have been consulted as part of the Ministry of Justice review process.
The Government has now published its position as part of this review process; this Memorandum (available at http://webarchive.nationalarchives.gov.uk/20140122222456/http://www.official-documents.gov.uk/document/cm82/8236/8236.pdf)considers the objectives of the original FOI Bill, attempts to evaluate whether those objectives have been met, as well as highlighting any specific issues identified since FOIA came into force and measuring the performance of FOIA against its original objectives of openness and transparency, greater accountability, better decision making and greater public involvement in decision making.
A consistent message from the majority of respondents was a desire to see the appropriate limit reduced, or for other resourcing elements such as redaction, consultation and reading time to be included in some way. Currently the legislation sets the cost limit at £600 for government departments and £450 for all other public authorities, equating to three and a half person days and two and a half person days of work respectively. There was a general view that the current time given to dealing requests is too onerous, with the issue being particularly exaggerated by the recent budget cuts which have taken place.
We have previously expressed the view that public authorities might be well advised to consider a radical change in their approach to FOIA; proactively look at routine publication of information which would have to be released in response to a request with a view to long-term cost and time savings.
In the meantime, a new plain English guide to Freedom of Information was published by the Information Commissioner on 30 January, 2012. The guide is intended to help public authorities better understand the Act, what is said and how to apply it.