Although the coalition government is committed to extending the scope of the Freedom of Information Act, the process is turning out to be excruciatingly slow.
Before the 2010 election the Conservatives promised to extend the FOI Act to additional bodies “within weeks of the General Election”. A consultation was announced by the Ministry of Justice on 7 January 2011, but two and a half years after the election, a decision on the outcome is still not close.
A recent parliamentary question by Stewart Jackson MP asked what progress had been made extending the Act to registered providers of social housing. The minister’s answer revealed that consultation with these bodies is yet to even begin, despite Grant Shapps, the former housing minister, promising back in June 2011 they would be consulted later that year. It also confirmed that it could be spring 2015 before the extension of FOI to bodies with public functions is complete.
Last year, the MoJ disclosed further details about which bodies it is consulting about coverage following a FOI request by the Campaign. Someone else asked for the responses received by the MoJ from those bodies, but the MoJ refused that citing the exemption for information relating to the formulation or development of government policy. The Information Commissioner recently upheld the department’s refusal to disclose the responses on the grounds that the policy process was still live at the time of the request. The Commissioner’s decision cites the strong weight that should be attached to ‘safe space’ arguments and, to a lesser extent, the ‘chilling effect’, as the two reasons for his finding that the public interest favoured withholding the information, despite the fact that the disputed information involved third party information and not the advice of officials.
In contrast, the Ombudsman in New Zealand has just published a case note on a complaint where she found there was no good reason to withhold responses to a government consultation exercise which were still under active consideration under the Official Information Act (h/t Andrew Ecclestone):
Ombudsmen have rejected the argument that premature release of public submissions would impede the subsequent development and consideration of policy advice by officials and Ministers. Disclosure of submissions cannot pre-empt or prejudice the ability to consider later advice that may in part be based on the submissions. Officials remain free to advise Ministers (and Ministers to advise Cabinet) about the merit or lack of merit in particular submissions as they see fit, and to offer such additional advice as they deem appropriate.
It’s clear that section 5 is not the appropriate mechanism for resolving anomalies in the legislation’s coverage, given the time it takes. Last year the Campaign worked with Lord Wills on an amendment to the Localism Act which would have brought the Housing Ombudsman under FOI, though the amendment was not accepted. From 1 April 2013, the Housing Ombudsman’s jurisdiction will be extended to all social housing in England. The government is consulting the Ombudsman on FOI coverage and the Service’s website says it “will follow the terms of the Act voluntarily whenever possible”. But judging by the minister’s answer it will be several years yet before requesters have a legally enforceable right to obtain information from it.