Seven years after coming into force, the UK freedom of information regime still divides opinion. Recent developments provide an opportunity to review the regime, which is heralded by many as the cornerstone of open government and is criticised by some for the burden it places on public authorities.

In this briefing, we note some of the concerns raised about the regime, and we look at the ways in which policy-makers have responded to those concerns while continuing to push for more openness in the public sector.

Under the Freedom of Information Act 2000 (FOIA) and the Environmental Information Regulations 2004, 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, and public authorities are not obliged to consult with potentially affected third parties before they disclose any information they hold.

Post-legislative review

The FOIA has recently been subject to post-legislative scrutiny by the House of Commons Justice Committee, which reported on the legislation in July 2012. This process has highlighted criticisms of the freedom of information regime, some of which have been voiced by senior public figures. Most notably, former prime minister Tony Blair told the committee that introducing the FOIA was a ‘mistake’.

His main concern, echoed in evidence given to the committee by former cabinet minister Jack Straw and former cabinet secretary Lord O’Donnell, was that the FOIA has undermined the policy-making process within central government and, in particular, that it inhibits civil servants when they give advice and compromises the ‘safe space’ needed for ministers to freely discuss policy issues.

Public authorities are also increasingly voicing concerns about the pressures of the freedom of information regime. The Ministry of Justice acknowledged this in a memo provided to the Justice Committee as part of the post-legislative review. It stated that ‘concern within public authorities at the time taken to process and respond to FOI requests, to conduct public interest tests and consider exemptions, to conduct internal reviews and to deal with complaints and appeals is significant’.

The committee also considered evidence that suggested the number of information requests has increased significantly since the FOIA came into effect, and that requests have become more complex over time.

Despite these concerns the Justice Committee concluded in its report that the FOIA works well. It agreed with the Ministry of Justice’s view that the legislation contributes to greater openness across public authorities. Significantly, the committee rejected suggested amendments to the FOIA that would make it easier for public authorities to withhold information in certain circumstances.

For example, it ruled out the idea that information about government policy discussions should become absolutely exempt from disclosure. It concluded that existing exemptions subject to public interest considerations, combined with the available ministerial veto, provide sufficient protection. It also rejected calls to charge for requests and dismissed the suggestion that public authorities should be able to take into account the time spent on considering exemptions when estimating whether requests can be declined on costs grounds.

Policy momentum behind greater openness

The Justice Committee’s conclusions chime with the coalition government’s recent statements about the merits of the regime, which it considers an important part of its so-called transparency agenda and its commitment to greater openness throughout the public sector. For example, in the white paper Open Data: Unleashing the Potential, published in June 2012, the government stated that while ‘typically, governments go cold on the idea of openness and transparency after a couple of years in office’ it was ‘determined that enhanced access to public data will be an enduring characteristic of this one’.

Indeed, recent developments suggest that the policy momentum in the UK remains in favour of greater openness. In particular:

  • The Protection of Freedoms
  • Act 2012 was used to amend the FOIA, to promote the proactive release of more datasets in future and to ensure that when data is released it is in a re-usable format and is, where possible, free for re-use. Other changes will also bring companies wholly owned by more than one public authority within the scope of the FOIA.
  • The government appears committed to extending the freedom of information regime. In 2011, academy schools, the Association of Chief Police Officers, the Universities and Colleges Admissions Service and the Financial Ombudsman were brought within the ambit of the regime. Also, the Ministry of Justice is consulting with other bodies that it has identified as candidates for designation as new public authorities under the FOIA.
  • In recent months, UK government departments have each been required to publish ‘Open Data Strategies’, to show they are committed to proactively publishing their data (this is in addition to their duty to produce publication schemes under the FOIA).
  • In 2011, the Cabinet Office launched the Contracts Finder website, which publishes all documents for government procurements worth more than £10,000 (including the contracts) and enables businesses to identify opportunities to bid for future contracts.

Recognition of the need for moderation

All this is not to say that the drive to greater openness is being pushed without thought for the need to address some of the concerns identified above. Indeed, as mentioned, the Ministry of Justice was careful to acknowledge those concerns in its memo to the Justice Committee. Also, in the recent open data white paper, the Minister for the Cabinet Office made it clear that the ‘success of the information marketplace hinges on our ability to safeguard people’s data from misuse and rigorously protect the public’s right to privacy’.

Similarly, in its post-legislative scrutiny report the Justice Committee recognised that complying with the FOIA ‘can be a significant cost to a public body’. As a result, the committee recommended, among other things, marginally decreasing the costs limit that allows public authorities to refuse requests on costs grounds.

Perhaps more significantly, the report also recognised that ‘the power to exercise the ministerial veto is a necessary backstop to protect highly sensitive material’. It went on to suggest that it might be appropriate to water down the government’s policy statement on the use of this veto, which currently indicates that it should only be used in ‘exceptional circumstances’.

These comments about the ministerial veto are topical, not least because of the former Health Secretary Andrew Lansley’s controversial decision in May 2012 to override a ruling that an official assessment of the risks associated with proposals to reform the National Health Service should be released. Also, soon after the Justice Committee’s report, the government issued a ministerial veto to block the release of cabinet minutes from 2003 relating to legal advice concerning the UK military in Iraq (a previous ministerial veto relating to a separate request for these minutes was issued in 2009).

The ministerial veto has only been used five times to date, but it will be interesting to see if these recent developments signal more willingness on behalf of ministers to rely on this power to withhold information that would otherwise be released under the FOIA.