Welcome for select committee’s rejection of FOI charges and restrictions on release of policy discussions

A major review of the Freedom of Information Act which rejects charging for FOI requests or new restrictions on access to policy discussions in Whitehall has been warmly welcomed by the Campaign for Freedom of Information which said the report “would preserve and strengthen the important advances made by the FOI Act”.

Charging

Some public authorities had pressed for the right to charge for each FOI request as a way of reducing the volume of requests and the cost of the legislation. However, the House of Commons Justice Committee, which has examined how the law works, says the benefits of FOI outweigh the costs, and points to the Act’s role in exposing and deterring wasteful spending.[1] It considered whether charges could be made for requests by commercial bodies and the media but concluded that such bodies could easily circumvent these by making requests in other peoples’ names. It suggests authorities could reduce the costs of FOI by handling requests more efficiently.

The Campaign’s director Maurice Frankel welcomed the rejection of charging, saying “large and well funded organisations might not be affected by charges but small charities and less well off requesters would ration their use of the Act or stop making requests altogether, even when they needed the information to protect their rights or argue an important case.” Those who could not afford to pay might have to ask for information without invoking the Act, and have no way of challenging the deliberate withholding of inconvenient information, the Campaign added.

Policy formulation

Information about policy formulation is potentially disclosable under the Act’s public interest test, though the Tribunal has held that releasing such information before decisions are taken will rarely be in the public interest. But disclosure is more likely once the decision has been taken, particularly if the information itself is not sensitive, or the decision was taken some time ago or there is a significant public interest in knowing how or why it was made.

However, the former Cabinet Secretary Lord O’Donnell and the former Home Secretary Jack Straw had argued that the possibility of disclosure made ministers and officials less likely to put their views in writing, undermining good government. Both had called for this information to be protected from disclosure regardless of the public interest in disclosure, for at least 20 years.

The committee rejected this suggestion, finding that the evidence that FOI was responsible for a “chilling effect” was too uncertain to justify such restrictions. The Campaign welcomed this decision. Mr Frankel said: “We should not allow the clock to be turned back to keep this material secret for decades, protecting those who make poor decisions or force through laws which they know won’t achieve their aims”.

The committee points out that ministers can veto any decision requiring them to disclose information on public interest grounds and says this is a more appropriate mechanism for protecting highly sensitive policy material than a new exemption. However, the Campaign said it would be extremely concerned if the veto – which has so far been used only 4 times in six years – were to be regularly used in future.

Private contractors

The committee says the right to information must not be undermined by the use of private sector contractors to provide public services, and calls for clear and enforceable disclosure requirements to be inserted in such contracts. But the Campaign called for a more systematic approach: “We don’t believe that relying on every authority to insert an appropriate clause into every contract one at a time is likely to be effective. The FOI Act itself should state that all such contracts are deemed to include a wide disclosure requirement, automatically bringing information about the contractor’s performance and the way the contractor goes about it within the Act’s scope”.

Time limits

The Campaign welcomed the committee’s recommendation that the time limits for responding to FOI requests, and carrying out internal reviews, should be tightened to stop authorities kicking requests into the long grass. At present authorities can take an unspecified “reasonable” extension to the normal 20 working day time limit to consider the release of information on public interest grounds. The committee says this open-ended period should be limited by law to a further 20 working days. The committee also calls for a 20 working day limit for the internal reviews.[2] It also proposes that all authorities be required to publish their timeliness statistics.

The committee also recommends the removal of the 6 month time limit on prosecuting authorities which deliberately shred requested records and for greater penalties to be available – an extremely welcome recommendation, the Campaign says.

Refusing requests on cost grounds

The committee considered whether the rules which permit authorities to refuse requests on cost grounds should be changed.[3] At present authorities can take account of the time they spend finding and extracting the requested information. Some authorities want to also be able to count the time they spend deciding whether to release it. The committee rejects this idea, agreeing with the Campaign’s argument that it would be open to abuse.

The committee does, however, recommend that authorities should be able to refuse requests on cost grounds if they would take more than 16 hours to answer, a reduction from the current 18 hour limit. The Campaign said this was a relatively modest change, but expressed concern that the government might use the recommendation to implement wider changes than the committee had proposed to the way in which these rules operated. Its says the Blair administration attempted to amend these rules in 2006 in ways that would have fundamentally undermined the Act’s operation.

Drawing attention to the costs of disclosure

The committee says suggests that disclosure logs (lists of released documents published online by authorities) should include the name of the requester, presumably as a way of drawing attention to requesters who make excessive use of the Act. The Campaign has no objection to this proposal, but says it should not apply where genuine privacy concerns arise (eg where a requester seeks information about a death of a relative).

Research interests

The committee recommends a new exemption, subject to a public interest test, based on one found in the Scottish FOI Act, for information whose disclosure would prejudice an ongoing programme of research, or the interests of the researchers or research subjects.

Notes

The Justice Committee’s report “Post-legislative scrutiny of the Freedom of Information Act 2000, First Report of Session 2012–13, HC 96-I, is published on July 26 2012. See: http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9602.htm

The Campaign made two written submissions and gave oral evidence to the committee. See: initial submission to the Justice Committeesupplementary submission to the Justice Committee and watch ahttp://www.parliamentlive.tv/Main/Player.aspx?meetingId=10302

[1] For examples of FOI requests which have revealed wasteful spending see pages 14-19 of the Campaign’s supplementary submission to the Justice Committee.

[2] These are carried out by authorities when a requester complains about the response to their requests.

[3] At present these allow authorities to refuse if the costs of finding and extracting the information would exceed £450 or £600 in the case of government departments, corresponding to 18 and 24 hours respectively (at a standard £25/hour rate).

Further information

Maurice Frankel or Katherine Gundersen 020 7490 3958

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