In 2012, the House of Commons Justice Select Committee carried out a major review of the operation of the Freedom of Information Act. Its report ‘Post-legislative scrutiny of the Freedom of Information Act 2000’ (HC 96-I) described the Act as a “significant enhancement of our democracy” and rejected the need for any major changes. The government’s response to the Committee in November 2012 nevertheless proposed a series of measures to restrict the Act. The government said its aim was address those who impose a ‘disproportionate burden’ by making ‘industrial’ use of the Act. But its proposals were not targeted at people who make excessive use of the Act. They would have made it easier for public authorities to refuse all requests, including those from people making modest use of the Act and raising issues of real public interest.
The suggested proposals were:
- to allow the time which officials spend considering a request and redacting exempt information to be taken into account in deciding whether it can be refused on cost grounds;
- to reduce the cost limits themselves (currently £600 for central government or £450 for other authorities) to some lower amounts;
- to permit unrelated requests made by one person or group to be refused where these become so frequent as to become ‘disproportionately burdensome’; and
- to introduce charges for appealing to the Information Rights Tribunal.
Any one of these would have had a potentially serious impact on the operation of the Act. Together they would have substantially undermined it.
Changes to the cost limit
Currently, authorities can currently refuse a request if the estimated cost of finding and extracting the information exceeds certain limits. The government said it was minded to allow the time they spent considering a request and redacting (deleting) exempt information to also be taken into account in deciding whether a request can be refused on cost grounds. Adding these activities would have allowed many more requests to be refused on cost grounds. Any request involving new, complex or contentious issues would have been at risk of being refused under this proposal, simply because of the consideration time needed to work through unfamiliar issues. The Justice Committee expressly rejected this option agreeing with the Campaign that it was open to abuse (HC 96-I, para 60).
The second proposal was that the £600 and £450 cost limits should themselves be lowered. Again, this could not be regarded as a measure to deal with disproportionately burdensome requests. It would have applied to all requests. The cost limit is an absolute bar to disclosure based solely on the number of hours of work involved. It takes no account of the public interest in disclosure, however compelling.
The third proposal would have allowed unrelated requests from the same individual or group to be aggregated so that all of them could be refused if the total cost exceeded the cost limit. This would have affected the ability of local newspapers, local organisations and even MPs to obtain information on a range of issues from one authority.
Charges for appeals
The government’s response also raised the possibility of charging for appeals to the Information Rights Tribunal. These would have deterred requesters with well-founded cases from appealing against decisions that they would be likely to win and slowed the development of case law.
How we opposed these restrictions
The Campaign took the lead in opposing these proposals. We argued that the government’s concerns about burdensome requests had already been met. In January 2013 the Upper Tribunal, the top level body dealing with FOI appeals, issued a new ruling that requests which imposed ‘disproportionate burdens’ could be refused as vexatious. The Information Commissioner’s Office also issued new guidance to this effect. This meant no new measures were necessary to deal with disproportionately burdensome requests.
- The Campaign held a briefing meeting for campaign organisations, journalists and concerned individuals explaining the implications of the proposals.
- We met the coalition government’s justice minister Lord McNally, and then Simon Hughes who succeeded him, to explain why we thought the proposals were likely to be so damaging.
- We wrote to Lord McNally setting out our concerns in detail. Read the letter and Lord McNally’s reply here.
- We provided a succinct account of the issue for the press.
- We organised an Early Day Motion – a parliamentary petition – calling on the Government to drop the proposals. The motion was tabled by the veteran FOI advocate Sir Richard Shepherd (Con) and supported by an all-party group of MPs: John Healey (Lab), Dr Julian Huppert (Lib Dem), Caroline Lucas (Green), David Winnick (Lab) and Mark Durkan (SDLP). Further information about the EDM is here.
- We organised a letter to the Prime Minister, signed by 76 press and campaign bodies, opposing the measures.
The coalition government said it would decide which options it preferred and consult on them. But by the time the government left office, in May 2015, no consultation paper had been published. The proposals almost certainly remain on the Ministry of Justice’s wish-list and are likely to re-surface.