The Cabinet Office has recently announced that a cross-party commission is to look into the Freedom of Information Act 2000 (“FOIA”) in light of apparent concerns that sensitive information is not being sufficiently protected.

FOIA was introduced under the last Labour Government, coming fully into force on 1 January 2005, and allows a private citizen to obtain information held by public bodies across the UK, with a number of exceptions including for confidential, sensitive or personal information.

In a written statement in Parliament, Lord Bridges, Parliamentary Secretary for the Cabinet Office, explained that, “we fully support the Freedom of Information Act but after more than a decade in operation it is time that the process is reviewed, to make sure it’s working effectively“.

The Commission will look at whether FOIA strikes the right balance between, on the one hand, ensuring that public bodies are transparent and accountable; and, on the other hand, recognising the need for sensitive information to have “robust protection” and ensuring that there is a “safe place” in which public authorities can develop and implement policy. In particular, one of the Commission’s key aims appears to be to ensure that civil servants are able to give ministers “frank” advice in this context.

The Commission may also consider the burden placed on public authorities by FOIA in requiring them to respond to information requests and whether the rules should be moderated to make it easier for them to refuse requests whilst still ensuring that the public has access to information.

The Commission will be chaired by Lord Burns, a senior Treasury civil servant, and its members will include: former Conservative Home Secretary, Lord Howard; his Labour successor, Jack Straw; Lord Carlile, a former Independent Reviewer of Terrorism Legislation; and Dame Patricia Hodgson, Chairman of Ofcom.

The panel’s composition has been criticised for being unbalanced as it will be wholly staffed by civil servants and former ministers.  Former Home Secretary David Davis has argued that a journalist or civil rights campaigner should be appointed saying, “if you don’t put all points of view on [the panel], it is harder for people to have confidence in its findings“.

The Commission will report to the Minister for the Cabinet Office and will publish its findings by the end of November 2015.

This is not the first time that those in office have seen the need to review FOIA. Tony Blair famously said in his memoirs that he regretted introducing FOIA since it removed the last vestiges of Government confidentiality and was not used by “the people” but by journalists instead. In 2006, Tony Blair’s Labour Government tried to introduce legislative proposals to make it easier for public authorities to refuse FOIA requests on “cost grounds” (for example, requests which were complex, sensitive or raised public interest issues would have been likely to be refused on cost grounds, regardless of their merits). If they had been passed, these proposals would have severely restricted the amount of information that could have been obtained under FOIA. In 2010, FOIA was amended to include, among other things, an exemption for communications with the Queen, other members of the Royal Family and the Royal Household, and the awarding of honours by the Crown. Certain information relating to the sovereign and to the heir and second in line to the throne became absolutely exempt from FOIA, whereas information relating to other members of the royal family and the royal household remained subject to a public interest test.

However, most recently, in a victory for freedom of information, the Supreme Court in Evans v Attorney General  ruled that the Attorney General could not rely on the veto in section 53 FOIA to override the Upper Tribunal decision to disclose Prince Charles’s private correspondence with ministers merely because he took a different view from the tribunal. The Court found that clear words must be used if statute is intending to prevent courts and tribunals from reviewing the actions of the executive. It concluded that section 53 was far from being clear enough, particularly given that fundamental rights were at stake.

In the wake of Evans, it is perhaps unsurprising that the Government wishes to clarify the use of FOIA. However, it remains to be seen whether the new Commission will see its mission as protecting the Government’s right to confidentiality or protecting the public’s “right to know” Government information.