The Independent Commission on Freedom of Information (the “Commission“) has published its report on the Freedom of Information Act 2000 (“FOIA“). After extensive written responses to a call for evidence and two days of oral evidence, the report has surprised commentators by not recommending any major changes to the existing freedom of information regime to further protect communications of ministers and civil servants. We set out below some of the key changes considered by the Commission and the reasons for their rejection.
Introduction of fees for FOIA requests
In a previous blog post we highlighted concerns that the Commission was considering proposals that would decrease the transparency and accountability currently afforded by the FOIA regime. Key amongst these was the proposed introduction of a fee for making a FOIA request.
The Commission concluded that it would not be appropriate to introduce a request fee due to the potential deterrent effect this could have. In particular, the Commission was concerned not to take steps that would restrict requests by the media, which are often in the public interest. The report suggests that requests by investigative journalists that then lead to large-scale investigations could be stifled by the imposition of a fee. The Government has announced that it agrees with the Commission’s view and does not plan to introduce request fees.
Timeframe for responses
Under the current FOIA regime, a public authority needs to consider the public interest balance, it can extend the 20 working day deadline for answering a request by an uncapped period. The Commission recommends that the extension instead be limited to only a further 20 working days (in line with current ICO guidance), and only when the information is complex or voluminous or if third parties need to be consulted. Similarly, the Commission recommends that public authorities that have been asked to conduct an internal review should be required to undertake the review within 20 working days. The Government is yet to announce whether it intends to adopt these recommendations.
Protection for policy development
The Commission heard evidence on whether the current FOIA regime provides a “safe space” for policy development, where ministers and officials can discuss policies frankly while maintaining the principle of Cabinet collective responsibility and whether the risk of disclosure has had a chilling effect on such discussions.
The Commission has recommended that the exemptions in s.35 and 36 FOIA are amended to widen their scope. For example, it is recommended that s.35(1)(a) is amended to protect any communications regarding policy, rather than simply those strictly relating to the “development” of policy. However, the Commission fell short of recommending that these exemptions become absolute rather than qualified. In the Commission’s view the exemptions already provide (along with the Cabinet veto) sufficient protection for Cabinet-related material. The Government has announced that it is carefully considering this recommendation.
The Commission also recommends legislative clarification of the ministerial veto following Evans v Attorney General in order to ensure that the executive has “the last word” on dissemination of information. The Government has already announced that it does not intend legislative changes at this stage.
However, the Government has stated that it will follow the Commission’s recommendation only to deploy the veto after a decision has been made by the Information Commissioner. This can be used even in the event that the Information Commissioner decides that information is exempt. A veto used in this way will have the effect of denying requesters appeal rights to the First and Upper-Tier Tribunals, leaving judicial review as the only available source of appeal.
Expanding FOIA to the private sector
The Commission did not make recommendations on the extent to which private contractors providing public services should be subject to FOIA. The Commission noted that there was a need for greater transparency in relation to outsourced public services but concluded that this needed to be balanced against the risk of discouraging private bidders for public contracts.
The Commission also did not address the impact on the private sector of the disclosure of commercial information by public authorities, such as regulators, in response to FOIA requests.
When the Commission was formed and considering evidence it was widely predicted that its findings would curtail access to information under FOIA, removing provisions that were viewed by the Government as an unpopular nuisance. Therefore, the report comes as a relief to those who campaign for greater openness by Government.
The Government’s initial response to the report suggests that it does not intend to make any “legal changes” to FOIA, ruling out many of the recommendations which require legislative amendments. However, a number of the recommendations, for example those relating to the timeframe for responses, can effectively be made without legislative change, by including them in MOT and ICO guidance. The Government is carefully considering the recommendations it has not already responded to and supporters of FOIA remain cautiously hopeful that FOIA will continue to work well.