The Campaign has responded to the Cabinet Office’s consultation on a draft revised code of practice under section 45 of the Freedom of Information Act. The revised code would replace the current one that was issued in November 2004, shortly before the Act came fully into force.
Although the draft revised code is said to provide guidance on ‘best practice’ under the Act we think it needs to go significantly further to justify that description. As it stands the proposed code:
- does not fully reflect changes in the interpretation of the Act resulting from Upper Tribunal and court decisions
- describes as ‘best practice’ some measures which are required under the Act, implying that these statutory requirements are optional
- fails to properly explain the advice that should be provided when requests exceed the cost limit and how the Act’s provisions on vexatious requests should operate
- is weaker in key respects that the 2004 version of the code it is intended to replace, omitting numerous helpful passages from it. The effect is to limit rather than extend the spread of good practice.
In the Campaign’s view the new code should be substantially improved before it is introduced.
The Campaign for Freedom of Information has drafted a bill which would bring both housing associations and private contractors providing public services under the Freedom of Information Act.
Housing associations are not subject to the FOI Act and can refuse to answer requests about fire risks, safety problems, eviction policies, waiting lists and other matters.
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.
The Campaign has joined ARTICLE 19 and the Access to Information Programme (Bulgaria) in a joint intervention in a European Court of Human Rights (ECtHR) case involving GCHQ. GCHQ, like other security bodies, is not covered by the UK FOI Act. Information which public authorities hold about, or which has been supplied by, security bodies is protected by an absolute exemption.
The case has been brought by Privacy International and follows a recent decision of the Grand Chamber of the ECtHR that Article 10 of the European Convention on Human Rights provides a right to information from public authorities. The right applies to information requested by someone acting in a ‘social watchdog’ role seeking to contribute to public debate on a matter of public interest. The joint intervention argues that the UK’s blanket ban on any FOI disclosure of any kind about the security services in all circumstances is disproportionate and so breaches Article 10. It includes an analysis by the Campaign of the position of security services under the FOI laws of 44 Council of Europe states (paragraphs 41-58).
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.
A new legal block on the disclosure of information about NHS safety investigations will fuel public suspicion of cover-ups and protect poor quality inquiries from scrutiny, says the Campaign for Freedom of Information.
The Department of Health has proposed new arrangements for investigating serious hospital safety incidents. The aim is to encourage staff to speak frankly to investigators about mistakes they may have made without fear of being victimised. As a result, only the investigation report could be published. A new legal prohibition on disclosure would prevent the actual evidence obtained by investigators from being released under the Freedom of Information (FOI) Act. A hospital would not be able to release it voluntarily even if it wanted to and Parliament would not be able to obtain it either.
In a landmark decision, the Grand Chamber of the European Court of Human Rights has ruled in the case of Magyar Helsinki Bizottság v. Hungary that there is a right to information from public authorities under Article 10 of the European Convention on Human Rights. The UK’s Supreme Court had previously found that the Strasbourg court’s case law had not established this – but the new decision clearly does so.
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.
A Justice Committee report published today supports the abolition of the main right to appeal against the Information Commissioner’s decisions under the Freedom of Information Act. This would “seriously undermine the FOI Act” says the Campaign for Freedom of Information.
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.”