Today’s report from the Commission on Freedom of Information does not call for the severe restrictions that had initially seemed likely, according to the Campaign for Freedom of Information. The report sets out a mixture of proposals, many of which would enhance the FOI Act. However the Campaign says a proposal to remove the right of appeal against the Information Commissioner’s (IC’s) decisions to a specialist tribunal would undermine the Act’s enforcement system.
A statement issued last night by the Cabinet Office minister responsible for FOI, Matt Hancock, said the government “will not make any legal changes” to the FOI Act. The Campaign said this suggested that the Act would not be weakened.
The Campaign’s director Maurice Frankel said: “The Commission has stepped back from the one sided agenda which the government initially appeared to set for it, of restricting access to internal policy discussions, introducing charges for requests and making it easier for authorities to refuse requests. Instead it has also looked at the case for improving the legislation. The government itself has clearly been scalded by the criticism it has received from the press and public and made it clear it’s not prepared to take its initial agenda forward. We now need to ensure that the Act is extended to contractors providing public services and bodies like the National Crime Agency which have been deliberately excluded.”
- The Campaign welcomes the Commission’s proposals that there should be no new absolute exemptions to protect policy discussions within government, Cabinet discussions or risk assessments. The Commission says it has been persuaded by evidence from the Campaign and the IC that the public interest test should continue to apply to this information. The Campaign says the possibility of removing the public interest test in these areas was one of the greatest threats raised by the Commission’s terms of reference.
- The Commission also recommends against introducing charges for FOI requests, which it says could hamper investigations of public interest. The Campaign says this was the other major threat to the legislation. The government has accepted this recommendation.
- The Commission has not recommended making it easier for authorities to refuse requests on cost grounds, though says it is sympathetic to allowing the cost of redacting exempt information to be counted when deciding whether the Act’s ‘cost limits’ has been reached. (At present requests can be refused in the cost of finding the information exceeds these limits.) However, it also acknowledges the case for increasing the cost limits themselves and requiring requests in the public interest to be answered even where the cost limit has been exceeded.
- The Campaign said it is most concerned by the proposal to remove the right of appeal against the IC’s decisions to the First-tier Tribunal (FTT) which deals with FOI requests. This would make the IC’s decisions final, unless appealed on a point of law to the Upper Tribunal. The Campaign says the IC’s decisions are not consistently good enough to stand on their own in this way. Some 21% of FTT appeals by requesters are partly or wholly successful. “These requesters would have to live with unsatisfactory decisions if the right of appeal was removed” the Campaign said.
- The Commission recommends that the ministerial veto should only be used against decisions of the Information Commissioner, not the tribunal or courts. It proposes new legislation to prevent appeals against Commissioner decisions where a successful appeal would otherwise have been vetoed in the past. The government has said it will not legislate for this at present. The Campaign has always opposed the ministerial veto in principle and says the proposals may lead to the veto being used more frequently in future.
- The Commission endorses a proposal made by the Campaign that information held by contractors delivering public services, whether private companies or charities, should be considered as held on the authority’s behalf and thus be available via an FOI request to the authority. It suggests this should only apply to contracts worth £5 million a year or more.
- The Commission rejects the suggestion that universities should not have to comply with the FOI Act, saying that the suggestion that this would put them at a competitive disadvantage with private sector providers was ‘unpersuasive’.
- The Commission also calls for the public interest test relating to internal discussions to be adapted to give explicit weight to the need to protect the discussion of policy options and collective responsibility and to make clear that the ‘safe space’ for discussions continues even after decisions are taken. The Campaign believes these considerations are already given weight and do not require legislative changes.
- The Commission says time limits for responding to FOI requests should be tightened up and a statutory 20 working day limit for carrying out internal reviews introduced. It also says it should be easier to prosecute authorities which deliberately destroy requested information to prevent its disclosure.
- The Commission calls for authorities employing 100 or more staff to publish their FOI compliance statistics, a recommendation the government has accepted. It also calls for these authorities to have to publish all information disclosed under FOI on their websites.
The Commission proposes that authorities should publish annually the total of senior employees’ expenses and benefits in kind with a breakdown by category, though these may be aggregate totals.
- It says the IC should be given greater resources to allow it to monitor whether authorities are complying with their duty to publish specified information routinely.
- The Commission proposes that guidance issued to public authorities should be updated and should also encourage authorities to use the Act’s provision on vexatious requests where appropriate.
Notes: The Commission’s report is here.  The written ministerial statement by Matt Hancock is here.
Maurice Frankel or Katherine Gundersen 0207 324 2519.