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Whistleblowers and journalists face prison for revealing information that could be obtained under FOI

 

 

 

 

 

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.

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Proposal would lead to indiscriminate secrecy about NHS safety investigations

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.
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Landmark ruling on Article 10

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.
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FOI implications of the Justice Committee’s report on Courts and Tribunals Fees

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.
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Justice Committee recommendation would ‘seriously undermine FOI 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.
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FOI Commission’s rejection of new restrictions welcomed

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.”
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Response to the Commission on Freedom of Information

The Campaign has published an updated version of its response to the Commission on Freedom of Information, which it has also sent to the Commission. Its original submission contained a survey of Tribunal decisions which at that time was incomplete. The updated version contains the complete survey.
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Campaign responds to Chris Grayling’s FOI comments

The Campaign for Freedom of Information has responded to comments about the Freedom of Information Act made by Chris Grayling, Leader of the House, during Business Questions on 29 October 2015. Mr Grayling said the Act is being “misused” as “a research tool to generate stories for the media, and that is not acceptable”.

The Campaign’s director Maurice Frankel said:

“The FOI Act exists to help hold government to account, improve the public’s understanding of what it does does, to show whether policies are working and identify where public services need to be improved. Journalists are key users of the Act for those purposes and no-one should be surprised if that involves producing ‘stories’. That’s how the public learns what is going on.

Mr Grayling says he’s in favour of people using FOI to understand why and how government takes decisions. But the government has just set up the Commission on FOI to consider measures to restrict access to information about the decision-making process. He should tell them to look at ways of opening the process up instead.”

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Proposed anonymous use of evidence by the Commission on FOI criticised

UPDATE 28/10/15: Lord Burns has replied to the Campaign’s letter below. The reply says that the statement was only intended to imply that individual contributions would be anonymised. The Commission has now removed the statement and promised it will publish the evidence it receives. 

The Campaign for Freedom of Information has written to Lord Burns, chair of the Commission on Freedom of Information, expressing concern at the Commission’s proposal to anonymise any evidence that it cites in its report.
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New consultation document confirms that sweeping restrictions to FOI being considered

Sweeping restrictions to the Freedom of Information (FOI) Act are being considered by the body set up to consider the legislation, according to the Campaign for Freedom of Information.

After sitting for 3 months, the Commission on Freedom of Information, set up by the government this July, has today finally invited the public to submit evidence to it [1]. Its consultation document confirms that it is considering whether public authorities’ internal discussions should be made more difficult to obtain and whether ministers’ ability to veto disclosures should be strengthened. It is also considering changing the way the Act is enforced, which could reduce the public’s rights, and reducing the Act’s ‘burden’ on public authorities. Off the record briefings suggest this could include charging for FOI requests.
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