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Stop FOI restrictions

A Commission set up to examine the Freedom of Information Act and consider whether further restrictions should be imposed on the right to know has reported. stop-foia-restrictions

The Commission’s composition and terms of reference indicated that substantial restrictions to the Act were likely. However, in light of the evidence it received, showing that the Act was working well – and following a major campaign to defend the legislation – most of the feared proposals have not emerged. Indeed, some of its recommendations would strengthen the Act.

One extremely worrying recommendation, however, is that the right to appeal to the First-tier Tribunal against the Information Commissioner’s decisions should be abolished.  Under this proposal, appeals would only be possible to the Upper Tribunal on a point of law, but there would be no right to challenge the Commissioner’s decisions on other grounds. However, the government has indicated that it will not introduce legal changes to the Act. This appears to rule out the serious weakening of appeal rights proposed.

The Commission has also recommended changes to the way the ministerial veto should be used.  In future, the veto will only be used against decisions of the Information Commissioner – not against tribunal or court decisions. The government has said that, if necessary, it will put this change into legislation. If that happens, it appears that the government will also introduce a new procedure preventing appeals being made against certain Commissioner decisions.

The Commission’s final report was published on 1 March 2016. The Campaign’s response to the final report is here.

You can also read the Campaign’s written evidence to the Commission and watch a video of the Campaign’s oral evidence to it (the Campaign’s session starts 1 hour and 2 minutes in). Transcripts and videos of all the oral evidence sessions are here.

Some of our activities relating to the Commission’s work are described below.

 

In a letter co-ordinated by the Campaign, over 140 media bodies, campaign groups and others wrote to the Prime Minister in September 2015, expressing concern about the Commission’s composition and terms of reference.

The Campaign together with ARTICLE 19 held a briefing meeting on October 21 2015 for organisations proposing to respond to the consultation. The meeting was attended by nearly 60 organisations. The slides from the meeting are available here.

We also organised a cross-party briefing at the House of Commons at which David Davis MP (former Home Secretary), Louise Haigh MP (Shadow Minister for Civil Service and Digital Reform) and Lord Tyler (Liberal Democrat Constitutional Affairs and Political Reform Spokesperson) spoke.

The Commission received approximately 30,000 responses to the consultation.

Getting involved

The Campaign encouraged people to get involved in 4 ways (click to expand):

Writing to their MP

Supporters were encouraged to Email or write to their MPs asking them to help protect the Freedom of Information Act.

Supporters were advised to explain why the Freedom of Information Act was important to them. The bullet points below were provided to assist, but supporters were encouraged to use their own words if they could.

We suggested telling MPs:

• How important the Freedom of Information Act is in ensuring the openness and accountability of public authorities and informing the public about the performance of public services. If people had made effective use of FOI themselves, or had examples of how its been used within their area, we suggested referring to them.

• The Act has been ‘a significant enhancement of our democracy’ – this was the conclusion of the Justice Committee, which reviewed the Act in 2012.

• The costs of FOI are far outweighed by the benefits, such as exposing and deterring wasteful public spending

• Measures which make it harder to obtain information would allow public authorities to avoid scrutiny

• Introducing charges for requests would deter many people from using the Act

• The public interest test should not be removed from the exemptions dealing with internal discussions. This would lead to such material automatically being withheld, regardless of how strong the case for disclosure.

Supporters were also encouraged to ask their MP to sign Early Day Motion 930 tabled by Caroline Lucas MP (Green Party), which calls on the government not to amend the Freedom of Information Act “on the basis that there is no value in fixing something that is not broken.”

Submitting views to the Labour-led cross-party review

The Deputy Leader of the Labour Party, Tom Watson MP, has set up an alternative Labour-led cross-party review of the FOI Act looking at “how the Act can be strengthened and extended in the interests of open, transparent and accountable government.” The Campaign gave oral evidence to the review on December 14th.

The review published a call for evidence inviting responses to six questions. The report is expected to be published in spring/summer 2016.

Signing a petition

38 Degrees Protect FOI PetitionThe organisation 38 Degrees set up a petition to Protect FOI laws, which was eventually signed by almost 175,000 people.

Sign the petition

Sign the petition

Journalists signed the Hands Off FOI petition started by Press Gazette as part of the Society of Editors’ Hands Off FOI campaign

 

 

 

 

Supporting the Campaign

The Campaign is dependent on grants from charitable foundations and donations to continue its vital work defending freedom of information. You can make a donation here. Any support you’re able to give is extremely gratefully received.

If you’d like to stay informed about our work and future events, please join our mailing list.

Key Issues

The Campaign produced an explanation of the key changes to the Act that were being considered.

Internal discussion

The Justice Secretary, Michael Gove, made clear the government wanted to protect internal discussions from disclosure. These cannot normally be obtained under FOIA/EIR while a decision is being considered. But disclosure is sometimes ordered afterwards on public interest grounds. The decision depends on whether disclosing information of the age and sensitivity involved is likely to inhibit the future recording of such information. If so, the question is whether the public interest in avoiding this ‘chilling effect’ outweighs any public interest in disclosure.

The government said it wanted to avoid the ‘uncertainty’ of this approach. But the only way of achieving certainty would be to remove the public interest test from some or all internal discussion. That would lead to material being secret even if it revealed that critical mistakes had been made, inconvenient evidence had been ignored or poor decisions had been taken to satisfy commercial or other vested interests. For more information, see our recent briefing and 2012 submission to the Justice select committee.

Ministerial veto

Ministers can veto decisions taken under the FOIA or EIR. But in March 2015 the Supreme Court ruled that strict conditions had to be met if a decision of a tribunal or court was to be vetoed, though not necessarily where the Information Commissioner’s decision was involved. It also ruled that the veto could not be used at all in relation to environmental information. The prime minister made clear he wanted to restore the power of veto – though its unlikely that this can be done for environmental information. See our response to the Supreme Court ruling.

Charges

FOI requests are generally answered free of charge. Photocopying and similar charges can be made but are usually waived. ‘Reasonable’ charges can be made under the EIR but most authorities do not charge.

The FOI Commission suggested that it was considering introducing charges for FOI requests but ultimately decided not to recommend charges. When a €15 application fee was introduced under Ireland’s FOI Act in 2003, the volume of requests crashed to one quarter of its previous level. Significantly, Ireland abolished FOI application fees in 2014.

A fee may not affect people making occasional requests, unless they were on very low incomes, but it would hit those addressing problems that required them to make a series of requests or anyone trying to survey the practice of different authorities in their area. It would have reduced the scrutiny of public authorities, by making it easier for them to conceal inconvenient information.

The 'cost limit'

Authorities can refuse FOI requests if the cost of finding the requested information exceeds £600 (in the case of government departments and Parliament) and £450 (for other authorities). Costs are calculated at a standard £25/hr rate and equate to 24 hours or 18 hours of work respectively. These limits can be reached surprisingly easily, particularly where information is held at several different locations or in unindexed files. However, the costs of deciding whether to release information, or blacking out (‘redacting’) exempt information, cannot be counted. The Commission considered the possibility of allowing more costs to be included in deciding whether the cost limit has been reached. The public interest in disclosure cannot be taken into account in deciding whether the cost limit has been reached. So such changes would have made it easier for authorities to refuse requests regardless of the value of the information to the public.

The Act already allows ‘vexatious’ requests to be refused. The Court of Appeal recently upheld a ruling that a request which is disproportionately burdensome to answer can be refused as vexatious, particularly if the information is not of value to the requester or the public. This allows costs which do not count towards the FOI cost limit to be taken into account. The Commission’s consultation document made no reference to this development, though it specifically discussed the need to avoid  a ‘disproportionate burden’ on authorities.

The Campaign previously commented on this issue in the context of the coalition government’s proposals to amend the FOI fees regulations and the draft regulations to do so published by the Blair government in 2007.

Tribunal fees

In a separate move, the Ministry of Justice (MoJ) proposed that there should be a £100 charge for appealing to the First-tier Tribunal against an Information Commissioner decision. An oral hearing would cost an additional £500. Appeals are currently free. These charges are likely to lead to a collapse in the number of appeals being made by requesters. Authorities, on the other hand, will have no difficulty challenging decisions that they don’t like. The Campaign’s response to the MoJ consultation strongly opposed the proposed fees. In its response to the consultation, the MoJ said it had decided to defer making a decision on whether to introduce fees until after the Commission reviewing the FOI Act had reported. As that has now happened, they’re likely to be back on the agenda. 

What the Campaign has said

What others have said

Press coverage

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