November 30 2021

Freedom of Information Act not to be ‘neutered’

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Freedom of Information Act not to be ‘neutered’


Photo by gipukan, Flickr creative comms  (Rob Gipman).

Photo by gipukan, Flickr creative comms (Rob Gipman)

Minsters have resisted calls to ‘neuter‘ the Freedom of Information Act after a government review found the legislation ‘working well’. ‘We will not make any legal changes to FoI,’ Matt Hancock, the Cabinet Minister who set up the freedom of information commission, said earlier this week.

There were fears that the review would end up undermining the 10-year old legislation, through the imposition of restrictions on the release of information, bolstering the ministerial veto and adding new fees. The commission published its final report on Tuesday – you can read it here – and has been described by campaigners as ‘a partial victory’.

‘After 10 years, we took the decision to review the Freedom of Information Act and we have found it is working well.’
Matt Hancock

The justice secretary Michael Gove last June announced that he wanted to ‘revisit’ the legislation, saying that there has been ‘a worrying tendency in our courts and elsewhere to erode that safe space for policy advice’. Tony Blair, in his biography, famously regretted his role in the introducing the legislation. (‘Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop,’ he wrote.)

handsoffflogo_4More than 43,000 people signed a petition by the Hands Off FoI campaign, launched by the Society of Editors in conjunction with Press Gazette and Holdthefrontpage. Bob Satchwell, executive director of the Society of Editors, welcomed ‘a partial victory’. ‘Ministers have quite rightly backed away from restrictions to the Freedom of Information Act and have pledged to spread transparency throughout public services,’ he said. ‘A powerful case was made during the review for extending the Act and cultural change is certainly required but that is difficult to achieve. We must maintain the campaign to change the default switch from tell them nothing unless forced to one where public bodies release information which the public is entitled to have unless there is an exceptional  reason for withholding it.’

Maurice Frankel, director for the Campaign for Freedom of Information, said that the commission had ‘stepped back from the one sided agenda which the government initially appeared to set for it. ‘The government itself has clearly been scalded by the criticism it has received from the press and public and made it clear it’s not prepared to take its initial agenda forward,’ he said. ‘We now need to ensure that the Act is extended to contractors providing public services and bodies like the National Crime Agency which have been deliberately excluded.’

Of concern to campaigners and journalists is the recommendation that the government’s veto against releasing sensitive information should be strengthened. The veto currently allows ministers to override the Information Commissioner or specialist Tribunal’s decision that there should be disclosure in the public interest (here). A veto can be a powerful tool in the armoury of a government, arguably going against the principle of transparency – see the 10 year legal battle needed to release Prince Charles’s ‘black spider memos’.

There was a recommendation, though, that there should be greater clarity on the rules surrounding a refusal of disclosure under the FOI on the grounds that it is sensitive. For example, there should be more specific definition of what is included by the terms ‘policy formulation’ or ‘cabinet discussion’, under which information can be excluded from disclosure.

Ministers will now need to review the recommendations made by the Commission, and decide whether or not to approve them.

From the Campaign for Freedom of Information response (here)

  • Public interest test: The Campaign welcomed proposals that there should be ‘no new absolute exemptions to protect policy discussions within government, cabinet discussions or risk assessments’. It said the possibility of removing the public interest test was ‘one of the greatest threats’ posted by the commission.
    The Commission also called for the public interest test relating to internal discussions to be adapted to give explicit weight to the need to protect the discussion of policy options and collective responsibility and to make clear that the ‘safe space’ for discussions continues even after decisions are taken. The Campaign believes these considerations were ‘already given weight and do not require legislative changes.’
  • Costs: ‘the other major threat’ was the introduction of charges for FOI requests – which the commission has recommended against. Also, the commission has not recommended making it easier for authorities to refuse requests on cost grounds.
  • Right to appeal: The Campaign was ‘most concerned by the proposal to remove the right of appeal against the Information Commissioner’s decisions to the First-tier Tribunal which deals with FOI requests. This would make the Commissioner’s decisions final, unless appealed on a point of law to the Upper Tribunal. The Campaign says the Commissioner’s decisions were ‘not consistently good enough to stand on their own in this way’. ‘Some 21% of FTT appeals by requesters are partly or wholly successful,’ it pointed out.
  • Ministerial veto: The Commission recommended it should only be used against decisions of the Information Commissioner, not the tribunal or courts. It proposes new legislation to prevent appeals against Commissioner decisions where a successful appeal would otherwise have been vetoed in the past. ‘The government has said it will not legislate for this at present. The Campaign has always opposed the ministerial veto in principle and says the proposals may lead to the veto being used more frequently in future.’
  • Contractors: The Commission endorsed the proposal made by the Campaign that information held by contractors delivering public services should be considered as held on the authority’s behalf and thus be available via an FOI request to the authority.
  • Universities: The Commission rejected the suggestion that universities should not have to comply with the FOI Act’
  • Time limits: The Commission says time limits for responding to FOI requests should be tightened up and a statutory 20 working day limit for carrying out internal reviews introduced.
  • Compliance: The Commission calls for authorities employing 100 or more staff to publish their FOI compliance statistics, a recommendation the government has accepted.