A draft Bill set out in today’s Queen’s Speech will lead to an unnecessary layer of secrecy about investigations into patient deaths and injuries, says the Campaign for Freedom of Information.
The draft Patient Safety Bill will put the work of the newly formed Healthcare Safety Investigation Branch (HSIB), which investigates selected NHS safety incidents, on a statutory basis. The HSIB will be required to publish reports of its investigations, but will be prohibited by law from revealing any other information obtained during its investigations. FOI requests for such information will automatically be refused.
New proposals by the Law Commission to reform the 1989 Official Secrets Act (OSA) could lead to the imprisonment of civil servants and journalists for disclosing information that would be available to anyone asking for it under the Freedom of Information Act, say the Campaign for Freedom of Information (CFOI) and ARTICLE 19.
The Law Commission is proposing to make it easier to secure convictions under the 1989 OSA by weakening the test for proving an offence. But the proposed weaker test would catch information that would have to be disclosed under the Freedom of Information (FOI) Act, say the CFOI and ARTICLE 19.
In a joint response to the Law Commission proposals, ARTICLE 19 and the CFOI are concerned that:
- Whistleblowers and journalists could be convicted for revealing information about defence, international relations or law enforcement that is unlikely to cause harm
- Leaking information that anyone could obtain by making an FOI request could be an offence
- It would not be a defence to show that the information had already lawfully been made public under the FOI Act or otherwise – unless the information had also been ‘widely disseminated’
- Someone revealing danger to the public, abuse of power or serious misconduct would not be able to argue that they acted in the public interest
- Maximum prison sentences on conviction, currently 2 years, would be increased.
The Government has just stated that it is “carefully considering” a recommendation made by the Commission on Freedom of Information in March 2016 that the right to appeal to the First-tier Tribunal (FTT) against the Information Commissioner’s decisions should be abolished. When the Commission’s report was published the Government gave an assurance there would be “no legal changes” to the FOI Act. Abolishing the FTT would require such legislative changes. The FTT is a vital safeguard against poor decisions from the Information Commissioner. In 2014, some 20% of requester appeals to the FTT were wholly or partly successful. The Campaign believes that depriving requesters of this right of appeal would seriously weaken the public’s right to know.
The Justice Committee’s report on Courts and Tribunal Fees has endorsed the proposal, made by the Independent Commission on Freedom of Information that the right of appeal to the First-tier Tribunal (FTT) under the Freedom of Information Act should be abolished. The Committee does not appear to have examined the case for this change itself. It simply reported that it saw no reason to disagree with the Commission’s view. The Campaign believes that if the proposal went ahead, it would significantly undermine the operation of the Act.
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.”
Information about prison attacks, penalty fares on London Overground, whistleblowing policies in the NHS and parking tickets has all been withheld under the Freedom of Information (FOI) Act because this information was held by public authority contractors and not by the authorities themselves.
The Campaign for Freedom of Information is calling for the FOI Act to be extended to such information. It cites 10 examples of information about public services which has been withheld because of a loophole in the Act.
The Commission on Freedom of Information
and the future of the FOI Act
2.30 pm Monday 30 November 2015
House of Commons, Committee Room 9
Tom Watson MP, Deputy Leader of the Opposition
The Rt Hon David Davis MP, Conservative, Haltemprice and Howden
Lord Tyler, Lib Dem, Constitutional & Political Reform Spokesperson
21 Oct, 2 pm, Free Word Centre, 60 Farringdon Road, London EC1R 3GA
The Campaign for Freedom of Information and ARTICLE 19 are holding a briefing meeting for NGOs and media organisations on the consultation paper published by the Commission on Freedom of Information. The consultation suggests the Commission is considering sweeping changes to restrict the FOI Act, including:
- imposing charges for requests
- making it easier to refuse requests on cost grounds
- making it more difficult to obtain public authorities’ internal discussions, or excluding some from access altogether
- strengthening ministers’ powers to veto disclosures
- changing the way the Act is enforced
The meeting is to brief organisations that are proposing to respond to the consultation. We strongly encourage you to do so drawing on your own experience of the value of the FOI Act.
If you would like to attend the meeting, please rsvp to email@example.com.
The deadline for responding to the consultation is 20 November 2015. The consultation paper is available from –
140 media bodies, campaign groups and others  have written to the Prime Minister expressing ‘serious concern’ at the government’s approach to the Freedom of Information (FOI) Act.
The organisations are particularly concerned at the Commission on Freedom of Information, announced on July 17th this year. They say its terms of reference make clear that ‘its purpose is to consider new restrictions to the Act’  and that there is no indication that it is expected to consider how the right of access might need to be improved.
The Campaign has responded to a Ministry of Justice consultation proposing the introduction of fees for appeals against decisions of the Information Commissioner to the First-tier Tribunal.
We do not support the proposal. We think the proposed fees, of £100 for a case determined on the papers and £600 for an appeal involving an oral hearing, will deter many requesters from pursuing potentially successful appeals under the Freedom of Information Act or Environmental Information Regulations. It will be the public, and in particular, the public interest in the accountability of public authorities, that will be damaged.