The results of a review into the operation of the Freedom of Information Act 2000 ("the Act") highlight the success of the Act in enhancing openness and transparency within the public sector. On the whole, the Independent Commission on Freedom of Information ("the Commission") considers that there is no evidence to suggest that the Act needs to be radically altered or that the right of access to information needs to be restricted.
- The Commission recommends that the Act could be reformed to see a reduction in delays, whereby at present, requests for information can go unresolved for several years.
- There are also certain areas of the Act which are insufficiently clear and where uncertainties have grown up around its operation. The Commission makes recommendations in relation to some of these provisions.
1. Background to the review
The Commission was appointed on 17 July 2015 to review the Act as it has developed in the ten years since the Act came into force. The Commission received over 30,000 responses to their call for evidence.
The key terms of reference for the Commission were as follows:
- To consider whether the Freedom of Information Act 2000 strikes an appropriate balance between transparency, accountability and the need for sensitive information to have robust protection;
- Whether the operation of the Act adequately recognises the need for a "safe space" for policy development and implementation; and
- To consider the balance between the need to maintain public access to information against the burden on public authorities.
2. The Freedom of Information Act 2000
At present, the Act applies to over 100,000 public bodies in England, Wales and Northern Ireland. It gives a general right of access to recorded information held by bodies subject to the Act and requires that any written request for information is answered within 20 working days except in cases which require consideration of the public interest balance.
If a request is refused, the requestor must be notified in writing by the public authority and informed of any right of review. Where a request continues to be refused, the requestor can appeal to the independent Information Commissioner ("IC"). Where the IC upholds the decision of a public authority, the requestor can appeal to the First-tier (Information Rights) Tribunal.
The Act does not, however, apply to requests for environmental information or to personal data which are both dealt with by other legislation. Additionally, there are a number of exemptions to the general right of access, most of which are 'qualified' ie. subject to a public interest balancing test. In addition to the 'public interest' test, several exemptions require a 'prejudice' test to be satisfied before information can be withheld.
3. Key Recommendations
1. Helping requestors
The Commission recommends that requests should be dealt with more quickly and any extensions of time should be limited to a statutory period of 20 working days instead of an uncapped period. Extensions should only apply where requests involve information that is complex or of a high volume, or where consultation is required with third parties who may be affected by the release of the information. The Commission similarly proposes a statutory time limit of 20 working days in cases where a request is refused and a requestor asks a public authority to review its own decision.
Further recommendations include that all public authorities who employ at least 100 full time staff are required to publish their responses to requests where information is given out and publish their compliance statistics in relation to their duties under the Act. It was also suggested that more information is published about the expenses and benefits paid to senior public sector executives.
2. Section 35
Section 35 is the exemption which protects government policy formulation, Cabinet material and inter-ministerial communications. The Commission recommends that section 35 is amended so that when considering the public interest balance, protection is given to collective Cabinet responsibility and frank exchanges of views when deliberating.
3. Section 36
Section 36 is the exemption that protects information where its release would be detrimental to the effective conduct of public affairs. Here the Commission recommends that the provision which requires the reasonable opinion of a qualified person to be obtained before the exemption can be applied is removed. This would be a significant change which may lead to closer examination by the IC of the underlying position, whereas at present the IC would often be reluctant to overturn the reasonable opinion of the qualified person.
4. The Cabinet veto
In relation to this controversial area, the Commission has concluded that Parliament did intend the executive to have a final veto over the release of information. It therefore recommends that the government legislates to clarify that it does have this unusual power where the executive takes a different view of the public interest in release.
The Commission also recommends that the executive has the power to issue a "confirmatory" veto in cases where the IC upholds a decision of the public authority, which would have the effect of removing the normal appeal routes so that any challenge would instead have to be by way of judicial review of that veto.
5. The appeals process
In a significant procedural change, the Commission concluded that the First-tier Tribunal appeal stage be removed as it effectively duplicates the full-merits assessment carried out by the IC. The possibility of an appeal to the Upper Tribunal on a point of law would remain.
6. Burden on public authorities
Finally, it was recommended that the format in which information must be provided by public authorities should be clarified so that the extent of the obligation on public authorities is clear. The Commission also considers that the code of practice issued under section 45 should be reviewed and updated if necessary.
In addition to its formal recommendations the Commission voiced its opinions on certain other aspects of the current regime where it did not feel able to make a formal recommendation. In particular, the Commission found a need for greater transparency where public services are outsourced by contractual arrangements. Rather than bringing private contractors who deliver public services directly within the scope of the Act, the Commission suggests that information concerning the provision of public services under a contract with a value of £5 million or more per financial year is treated as being held "on behalf" of the public authority concerned, such that it falls within the scope of the Act.
There was some expectation that the Commission would seek to narrow the scope of the Act, but the report makes it clear that the Commission would not be in favour of such an approach. In fact there is a call for extension of the Act to ensure private contractors carrying out public services are subject to greater transparency (although this is not a formal recommendation).
The Commission's report also provides helpful guidance for improving the provision of information by public bodies in a more efficient and timely manner, although it remains to be seen how many of these recommendations are carried through.
Nevertheless, the report highlights the importance of the need for parties to have a strategy in place for the protection of their confidential or sensitive information, particularly if they are a public body or regularly provide information to a public body such that it could be caught by the Act.