Enforcement of FOI

Letter to Dr David Clark MP, Chancellor of the Duchy of Lancaster, about the enforcement of Freedom of Information

July 7, 1997

Dear David,

I thought it might be worth responding to the suggestion in this week’s Economist that the government’s thinking on a Freedom of Information Act is leaning towards complaints going to “an official answerable to Parliament”, rather than a more conventional enforcement mechanism.

We have never proposed that FOI should primarily be enforced in the courts, as the costs of this remedy would generally put applicants at a significant disadvantage in challenging a public authority. Instead, we have proposed an Information Commissioner, with the power to make binding orders. Appeal against such an order might either be to a special tribunal or by judicial review on a point of law or jurisdiction. This was the approach set out in Mark Fisher’s Right to Know Bill in 1993; in the Right to Information Bill introduced by the Labour front bench team in 1992; in the 1991 Labour Party Charter of Rights; and has been adopted in increasing numbers of more modern FOI laws, such as those of British Columbia and Ontario. It is also the approach suggested by Dr Richard Baxter, formerly of the Department of the Environment, in his 1995 report of a study of overseas FOI enforcement mechanisms funded by a Government Research Fellowship (‘Freedom of Information – Resolving Disputes’). A close UK precedent for this approach can be found in the powers of the Pensions Ombudsman whose determinations under section 151 of the Pension Schemes Act 1993 are “final and binding” unless challenged in the High Court on a point of law.

The advantages of such a Commissioner are that complainants would not need to be legally represented, and there would be none of the costs associated with proceedings in court. An order of the Commissioner would nevertheless have the force of a court order, and the Commissioner would quickly develop a consistent body of case law offering both applicants and public authorities a degree of clarity that would take much longer to develop in the courts.

Making an FOI Act legally enforceable would not be a constitutional innovation. The government can already be compelled by the courts to disclose information in accordance with legislation such as the Data Protection Act and the Environmental Information Regulations, or by discovery. In practice, we would expect the courts to actually be involved only rarely. The fact that a legal remedy is available will in itself generally be enough to ensure compliance.

Against a background of an enforceable right, measures to encourage informal resolution of complaints could be provided. For example the Commissioner could be permitted to seek (at least initially and with the applicant’s consent) to resolve complaints by mediation – as is the case in a number of overseas laws – or to negotiate some voluntary arrangement in cases where disclosure cannot be compelled. We also suggested, in the draft Right to Know and Privacy Bill previously sent to you, that the Commissioner should be required “to conduct an investigation with as little formality and as expeditiously as the requirements of this Part and a proper consideration of the matters concerned permits”. This approach would encourage less formal procedures where they would be helpful, while preserving the individual’s full legal rights.

But at the end of the day a legally enforceable right is in our view essential. We would be deeply concerned if the applicant was ultimately denied such a right, for example by providing that the final appeal against the Commissioner’s decisions would be to a select committee of the House of Commons or some other Parliamentary body.

The implication of any such arrangement would be that the government could avoid compliance with the Commissioner’s rulings by securing the support of the appropriate select committee or other Parliamentary institution, on which it would presumably have a majority. This would be a fundamental flaw in the legislation. Even if the committee supported the Commissioner, the government could still ignore it. Committees can enforce their findings only with the support of the House of Commons. Since a government can generally rely on its Commons majority to support it, even when it is plainly in the wrong, we cannot see how such a solution could be credible. Memories of Parliament’s handling of the Scott report are too fresh for most people to believe that the House of Commons, despite its new composition, is likely to behave as a judicial rather than a partisan body. The government could of course undertake to comply with the recommendations of such a Parliamentary committee, but if it is prepared to do this why not undertake to comply with the Commissioner’s orders in the first place, and accept that were it not to do so it would be in breach of the law?

A Commissioner/select committee solution would be similar to the current Open Government code of practice arrangements, whereby the Parliamentary Ombudsman can only make recommendations, but cannot enforce them, and must turn to the select committee which oversees his work if the government refuses to accept them. The potential shortcomings of this approach were clearly revealed in the maladministration case in the last Parliament involving the Ombudsman’s recommendations that compensation be paid to the victims of Channel Tunnel rail link blight. The government rejected the Ombudsman’s findings, and vigorously defended its approach before the select committee. It did eventually change its mind, but only after the Transport Secretary who had been involved was replaced in a reshuffle, and only as the general election – with a large number of marginal Conservative seats in the blighted areas – approached. This was not a victory for the Parliamentary system, merely confirmation that governments abandon vote-losing policies as an election nears.

There would certainly be advantages in providing Parliamentary oversight of a Freedom of Information Act, but these can be obtained without requiring that Parliament be the enforcing body. Both the Secretary of State and the Commissioner could be required to make their own annual reports to Parliament. A select committee could be encouraged, or even given statutory responsibility, to monitor and later review the Act’s operation. This approach was adopted in Canada (in section 75 of the Access to Information Act 1982) which requires that a committee of either or both Houses of Parliament have a standing responsibility for reviewing the operation of the Act and for carrying out a comprehensive review within its first three years. In addition, the Commissioner could be specifically required to report to Parliament where his investigations indicate that a change in the normal practice of authorities, or to the legislation, may be desirable. This would allow him to invoke the help of a select committee in addressing underlying problems, without affecting the legal position of an individual whose findings he had upheld.

A prime objective of a Freedom of Information Act must be to ensure that decisions on disclosure are not taken on the basis of political convenience. In our view this requires that the legislation be enforced outside Parliament, and we very much hope that is what the white paper will propose.

Yours sincerely,

Maurice Frankel

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