InfoLaw August 2012
You might remember, following his government’s introduction of the Freedom of Information Act (FOIA) Tony Blair’s berating of himself in his memoirs as a “naive, foolish, irresponsible nincompoop”. Over the course of a number of years, his view on freedom of information changed from his confidence that the introduction of legislation would signal a new relationship between government and people, to the extent that the public would become “legitimate stakeholders in the running of the country” to his feeling that FOIA, for political leaders “is like saying to someone who is hitting you over the head with a stick, “hey, try this instead”, and handing them a mallet”.
Post-legislative scrutiny of FOIA
In January 2011 our InfoLaw update considered, amongst other things, the Justice Select Committee’s announcement that it would be carrying out a process of post-legislative scrutiny in respect of FOIA. The Committee issued a call for written evidence to assist with the process asking, in particular, for evidence on:
• whether FOIA works effectively;
• what its strengths and weaknesses are; and
• whether it is operating in the way in which it was intended to operate.
On 26 July 2012, the Committee published its first report, which is largely positive and favours maintaining the way that FOIA operates in most respects. It states that FOIA is working well and that it has achieved its core aims, which were to increase the transparency and accountability of government.
Recommendations for change
The report considers that change might be appropriate in some areas, including in relation to an authority’s ability to refuse a request if it estimates that the cost of compliance would exceed the limit. The cost limit currently stands at £600 for central government, Parliament and the Armed Forces and £450 for all other public authorities and, based on a standard hourly charge of £25 per hour, allows 24 and 18 hours respectively for searching for and compiling the relevant information in response to a request. The rationale behind the cost limit is a recognition that freedom of information requests are not the only demand on the resources of a public authority and should not cause a disproportionate drain on an authority’s time, energy and finances.
While the report states that the cost of FOIA compliance, which was raised as an issue by many who submitted evidence to the Committee, is outweighed by the increased accountability that FOIA provides, it recognises that compliance can represent a significant cost and leaves the door open for a reduction of the amount of time that public authorities would be required to spend responding to a request before becoming entitled to reject it on the grounds of cost. Any change would, though, be subject to Government satisfying itself that a reduction would not significantly weaken the right to access information (by leading to a greater number of refusals).
In the context of considering the cost of compliance, the report rejects suggestions that charges could be made for making a request. The committee’s view was that imposing a charge may remove much of the effectiveness of FOIA in holding government to account, and that if charging was only introduced in respect of certain types of requester (for example, the media or commercial companies), this could easily be circumvented.
The report recommends that time limits for consideration of the public interest test and internal reviews be made statutory, noting that as these limits are set out in guidance already, this should not increase the burden on authorities.
The report also recommends changing the time limit on charging someone with the offence of destroying or altering information on the basis that bringing a case within six months of the offence being committed is difficult (evidenced by the fact that no prosecutions have taken place to date).
Recommendations to maintain current position
There are numerous aspects of the regime that the report recommends remain unchanged, including:
• the "requester blindness" operation of the system and the way it deals with frivolous or trivial requests. The report advocates the publication of details of requesters and of the response times to each request in a disclosure log;
• the "safe space" exemption in respect of government policy making. The report rejects evidence submitted to the Committee that FOIA has had a "chilling effect" on policy discussion in government, although it acknowledges that there should be greater awareness of the Ministerial veto which exists to preserve a “safe space” if required (see further below); and
• the inclusion of universities within the scope of FOIA. While the university sector should stay within the scope of FOIA, specific provision should be made to bring the pre-publication exemption into line with the position in Scotland, which provides an exemption from disclosure for ongoing, unpublished research.
The “Safe Space” Exemption
Coincidentally, the publishing of the report pre-dated by only a few days the announcement on 1 August 2012, that the Attorney General had vetoed the disclosure of extracts of Cabinet meeting minutes from 2003 at which military action against Iraq was discussed (the second time that such a veto has been made). There had been calls, rejected by the Committee, for FOIA to be amended so that an absolute exemption would apply to information relating to high-level policy discussions, including Cabinet discussions. The rationale for this proposal is that serious and controversial decisions must be taken in the context of free, frank and blunt deliberation between ministers and other policy makers to ensure that issues have been properly considered before government commits itself to a course of action. In the absence of a “safe space” in which thoughts can be voiced without fear of reprisal or publicity, it is argued that discussions of this nature will not take place.
The committee’s position in the report is that FOIA, as currently drafted, already provides a sufficiently secure “safe space” by virtue of the qualified exemptions in respect of government policy and the effective conduct of public affairs and the availability of the ministerial veto. The report highlights the importance of the ministerial veto and it will be interesting to see whether this results in an increased use of the veto by the government.
Outsourcing and FOIA
The Committee considered the relationship between FOIA and the increasing level of outsourcing of public services. The report states that to date the public sector has used appropriate contract terms to maintain the right of access to information when services have been outsourced. However, the report does note that the way services are being commissioned is continuing to evolve to include greater private and third sector involvement, and that as a result this is an area that should be kept under review.
The ICO’s response
On his blog, the Information Commissioner, Christopher Graham, expresses his satisfaction with the report’s conclusion that FOIA has been a significant enhancement of our democracy and that it is working well. In his view, “there’s been so much doom-mongering about the Freedom of Information Act in recent weeks that it was high time for an objective assessment of the impact of the Act to date, including consideration of how the law might be improved in the light of experience.”
Unsurprisingly the Commissioner is convinced that government is improved by the opening up of the corridors of power to greater scrutiny and the provision of a largely free and universal right of access to information, subject to legitimate exceptions. These would include the existing qualified exemptions in respect of policy making; in the Commissioner’s view, the ICO’s decisions evidence an approach to the need to protect the “safe space” which is consistent with the Committee’s comments.
Whilst those working in public authorities who are affected directly by the significant administrative burdens and cost imposed by FOIA may be disappointed by the report’s conclusions, given the government's transparency programme, it is difficult to imagine that any action which significantly scaled back the scope of FOIA would have been taken, even if there had been further recommendations for change in the report. In light of the report, however, authorities may want to consider again a re-assessment of their approach to disclosure of information and consider the pro-active publication of information which would be disclosable in response to a request. Whilst to do so would involve, in many cases, a significant change of approach – i.e. embracing rather than resisting disclosure - authorities who have implemented such a process of change report positively on the significant reduction of FOIA-related administration and cost.
The full text of the report can be accessed here.