Over ten years after coming into force, the UK’s freedom of information regime still divides opinion. The milestone anniversary provided a timely opportunity to review the regime, which is heralded by many as the cornerstone of transparent and accountable government, but which is criticised by others for the burden it places on public authorities. In particular, an Independent Commission on Freedom of Information that was established in 2015 will shortly make recommendations to the Government, which could potentially have far reaching implications for the future scope and operation of the regime. The Commission’s recommendations, and what, if anything, the Government ultimately then chooses to do with them, should therefore be read with interest by anybody that deals with public authorities, including private contractors working for public bodies, who could soon find themselves brought within the auspices of the regime. This briefing then considers some other more specific recent developments, including recent notable case law.
An overview of the UK’s information regime
Under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004 (EIRs), any individual or organisation has the right to access any information held by over 100,000 public authorities in the UK, subject to important exemptions and exceptions. This includes all information given to public authorities by third parties. All information requests must be responded to within a prescribed period, and public authorities are not obliged to consult with potentially affected third parties before they disclose any information they hold (albeit guidance from the Information Commissioner’s Office (ICO) suggests they should do as a matter of best practice).
Under the FOIA, a public authority can only refuse to provide requested information that it holds if the request is considered vexatious or repeated, the cost of compliance would exceed the appropriate limit, or if the information falls under one or more of the categories of exempt information listed in Part II.
The Part II FOIA exemptions are either qualified exemptions (where in addition to showing the particular exemption is engaged, the public authority also has a duty to consider whether disclosure is required in the public interest - for example the s.43(2) commercial interests exemption) or absolute exemptions (i.e. exemptions for which there is no duty to consider whether disclosure is in the public interest, they simply apply as of right - for example, the s.23 exemption covering information supplied by, or relating to, bodies dealing with security matters). Similar arrangements apply to certain types of environmental information (widely defined) under the EIRs.
Scrutinising the FOIA ten years on: the task of the Independent Commission on Freedom of Information
Over ten years after coming into force on 1 January 2005, the FOIA is currently the subject of scrutiny by an Independent Commission on Freedom of Information (the Commission), which was established by the Government in July 2015 to look into two particular issues, namely:
- whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection (including whether the operation of the FOIA adequately recognises the need for a ‘safe space’ for policy development and implementation of frank advice); and
- whether change is needed to moderate the balance between the need to maintain public access to information, and the burden of the FOIA on public authorities.
The Commission - chaired by Lord Burns - includes a number of high profile members, including The Rt Hon Jack Straw (the former Lord Chancellor, and Foreign Secretary) and Lord Howard (the former leader of the Conservative Party, and Home Secretary).
The Commission reported at the end of last year that it had received approximately 30,000 submissions of evidence from individuals, campaign groups, journalists and civil society organisations, and in January of this year it held two further sessions of oral evidence. It is anticipated that the Commission will publish its report and make its recommendations to Government shortly, having been originally scheduled to do so in December 2015. Public responses to last year’s call for evidence are available on the Commission’s website, as are transcripts of the oral evidence sessions (https://www.gov.uk/government/organisations/independent-commission-on-freedom-of-information).
In light of the six specific questions the Commission posed as part of its consultation process, and the evidence that it received in response, it is anticipated that the Commission is likely to address a number of issues that could have potentially significant implications for the future operation of the FOIA regime, including:
- whether more requests could be rejected on costs grounds (currently, the cost limit for complying with a request or a linked series of requests from the same person or group is set at £600 for central government, and £450 for all other public authorities) and whether to introduce upfront charges for FOIA requests (the introduction in Ireland of a €15 fee in 2003 is reported to have resulted in a 75% drop in the number of FOIA requests from the public, and was subsequently scrapped in 2014);
- whether to strengthen Ministers’ right to veto information releases, particularly in the light of the Supreme Court’s ruling last year that it was unlawful for Ministers to use the veto to block the request that ultimately led to the release of letters and memos written by the Prince of Wales to government ministers and politicians over the years (the so-called ‘black spider memos’); and
- whether to extend the FOIA regime to cover private contractors (be they commercial bodies or charities) working for public bodies (in this respect, it is worth noting that when the Ministry of Justice considered a similar question as part of a consultation in 2008, it concluded that the benefits of bringing in charities under the FOIA would be significantly outweighed by the ‘inevitable’ negative impact of their charitable causes brought by the extra costs of compliance).
The political context in which the Commission will be making its recommendations may ultimately prove determinative. The FOIA has been criticised by some for the burden it places on public authorities, and in particular on central Government. Former prime minister Tony Blair, whose government put the FOIA on the statute book, famously described introducing the FOIA as a mistake. The most recent statistics published in December 2015 by the Cabinet Office (the department which has recently assumed policy responsibility for the FOIA) show that the number of requests that central Government departments have had to deal with has risen by over a quarter over the past decade. Others have criticised the FOIA for undermining the policy-making process within central Government and, in particular, claim that it inhibits civil servants when they give advice, and compromises the ‘safe space’ needed for ministers to freely discuss policy issues. That such concerns have had some resonation is evidenced by the issues which the Commission has been asked to consider and the questions it posed.
On the other hand, there have been concerns expressed that the regime does not go far enough. Peter Clifton, editor-in-chief of the Press Association, gave evidence to the Commission that the FOIA “should be extended to include private contractors like G4S, Serco and Capita, who receive billions of pounds of public money every year and should surely be subject to greater scrutiny.” Although the extension of the FOIA in this way is not officially part of the Commission’s remit, Lord Burns has indicated that such proposals are being considered. Indeed, calls for such an extension of the FOIA have been echoed elsewhere, most notably by Tom Brake MP, foreign affairs spokesperson and chief whip for the Liberal Democrats. He has used the 10-minute-rule motion to ensure that his Freedom of Information (Public Interest and Transparency) Bill be heard and debated in Parliament later this year. The Bill would, amongst other things, extend the FOIA regime to all private companies, social enterprise and charities that carry out public sector work, and would also limit the time allowed for public authorities to respond to requests involving consideration of the public interest. Whilst such 10-minute-rule Bills rarely actually get onto the statute book, it demonstrates the considerable interest there is about the scope and future of the FOIA, even outside of the Commission’s work.
The future of FOIA?
A number of commentators have questioned whether the Commission’s recommendations could ultimately lead to a watering down of the FOIA, whereby on the one hand it is recommended that the regime should be significantly widened by extending it to cover private contractors working for public bodies; but at the same time it be made harder for individuals to access certain information, and in particular information held by central government.
The recommendations of the Commission, and what the Government ultimately chooses to do in the light of those recommendations, should therefore be read with interest by anybody that deals with public authorities, as well as private contractors working for public bodies.
Other recent developments
Other recent more specific developments which may be of interest to anyone dealing with public authorities (and information in respect of whom may therefore be caught by a relevant FOIA or EIRs request) include as follows:
- in R (Evans) v Attorney General  UKSC 21, as well as considering the constitutional question of the lawfulness of how the Ministerial veto had been exercised (see above), the Supreme Court also shed light on a more practical question, namely the question of - when considering whether qualified exemptions are engaged, what is the correct time is for a public authority to carry out the balancing exercise of whether disclosure is in the public interest, particularly if their original decision is appealed? The Supreme Court clarified that: “although the question whether to uphold or overturn…a refusal by a public authority must be determined as at the date of the original refusal, facts and matters and even grounds of exemption may, subject to the control of the Commissioner or the tribunal, be admissible even though they were not in the mind of the individual responsible for the refusal or communicated at the time of the refusal to disclose (i) if they existed at the date of the refusal, or (ii) if they did not exist at that date, but only in so far as they throw light on the grounds now given for refusal.”
- the ICO, in a recent Decision Notice (FS50591864 - December 2015) found that the commercial interests exemption in s.43(2) FOIA is not engaged where the information being withheld is of such a significant age that it is unlikely to influence future contract re-negotiations. The ICO was not persuaded that the information requested would be of relevance when the contract was re-negotiated in fifteen years’ time, and the public authority in question (a local council) had not shown that competing contractors would be unduly influenced by such historical financial information. The decision makes it clear that to rely successfully on the s.43(2) exemption (an exemption frequently considered and relied on by public authorities when asked to provide information pertaining to private, third party entities with whom they have had dealings, for example as part of a procurement exercise), an authority must show a clear link between the disclosure of information being withheld and the harm to the commercial interests that will result. It also serves as a useful reminder of ICO guidance which emphasises that in assessing whether the s.43(2) exemption is engaged, a public authority “must have evidence that this does in fact represent or reflect the view of the third party”. The public authority cannot speculate in this respect if it is to engage the exemption; the prejudice must be based on evidence provided by the third party, whether during the time for compliance with a specific request or, as is often the case, as a result of prior consultation with that third party.
- in July 2015, the Government also published a consultation on proposals to introduce fees for appeals, covering tribunal appeals from decisions of the ICO under the FOIA or the EIR. Under the proposals, the level of fee would differ depending upon whether the claimant elected to have the appeal heard on the papers (£100) or by way of an oral hearing (£600). The Government has delayed making a decision on whether to implement these proposals, pending the Commission publishing its report.