Supporters will be pleased and critics of freedom of information dismayed. Essentially MPs are giving the law the “thumbs-up!”

The Justice Select Committee has just published its review of the Freedom of Information Act 2000 (the Act).  

The benefits outweigh the burdens

Overall the report praises the Act saying it is a “significant enhancement to our democracy” and concludes that it is “working well”. MPs do not agree with suggestions the Act is seen as costing too much.

The Ministry of Justice is now charged with looking at the review and deciding what, if anything, to do.  

The Committee found that the Act:  

  • makes public bodies more open and tackles the culture of high secrecy in Government
  • encourages proactive publication of information by public bodies.

They recommended:

  • Reducing the amount of time spent on each freedom of information (FOI) request to reduce the burden on public bodies. Its suggested the 18 hour time limit should be cut to 16 hours
  • Requiring public bodies to publish data on how quickly they respond to FOI requests
  • Making the time limits for considering the public interest test and internal reviews statutory
  • Removing the time limit on prosecution for a section 77 offence and increasing the penalty on conviction. (Remember that section 77 of the Act makes it an offence for anyone to deliberately destroy, alter or conceal a record after it has been requested with the intention of preventing its disclosure)

No ‘safe space’ for internal debate

Tony Blair suggested the main problem with the Act is the way it restricts open discussion in Government. The media always want to publish “confidential discussions”.

The issue applies to all public bodies where no note or minute is taken of “open thinking” and difficult internal discussions on policy for fear that unguarded comments or “blue-sky” thinking could find itself on the front page with unfavourable comment.  

Stifling internal discussion, it is said, makes it hard to run any organisation properly. More so a major public authority.  

The review offers no crumb of comfort here. The MPs say high-level discussions in central Government are protected and central Government can always use a ministerial veto (though presumably sparingly).

The Information Commissioner’s Office (ICO) always rejects suggestions that internal debate is stifled, referring to them as “baseless” and “less than helpful”. Mills & Reeve’s experience is that the reality in practice is very different. Recent decisions from the ICO are “eating away” at the concept of a “safe-space” for confidential discussion. More and more is being ordered to be put in the public domain.

We shall see how the Act continues to affect senior managers’ ability to speak their minds while doing their jobs.