Freedom of Information: changing the law?

The Freedom of Information Act 2000, which came into effect in January 2005, provides an enforceable right to access recorded information held by around 100,000 public sector organisations.

The Act was the subject of comprehensive post-legislative scrutiny by the Commons Justice Committee in 2012, which found that the Act had been “a significant enhancement of our democracy” and any additional burdens it created had been outweighed by the benefits. However, concerns have emerged:

• The use of the Ministerial veto has become uncertain following a Supreme Court judgment concerning correspondence between the Prince of Wales and Government Ministers. 
• It is claimed that the obligation to respond to Freedom of Information (FOI) requests is placing disproportionate burdens on public authorities and diverting their funds from other purposes.
• Although Ministers insist that they support the Act, they believe that it is open to misuse and needs reform. There are suggestions that FOI requests may “gum up” the Whitehall machinery because officials are reluctant to write down sensitive matters such as policy options; also that the Act is being used as a “research tool to generate stories for the media”.

Accordingly, the Government established the Independent Commission on Freedom of Information in July 2015 under the chairmanship of Lord Burns. A public call for evidence closed on 20 November. The Commission considered the current exemptions allowed for internal policy deliberations, collective Cabinet discussion and the Ministerial veto. It also canvassed opinion on the appropriate enforcement and appeal system and whether the public right to know justifies the administrative burden placed on public bodies by FOI.

The press and campaigning bodies reacted strongly to any suggestion that the Act might be “watered down”, pointing to the numerous “public interest” stories that have emerged as a result of FOI requests. The Labour Party launched its own review of the Act.

The Commission published its report on 1 March 2016. It included 21 recommendations grouped broadly under: helping requestors, section 35 (formulation of Government policy etc), section 36 (prejudice to the conduct of public affairs), the Cabinet veto, the appeals process and burdens on public authorities. The Government responded on the same day with “preliminary views” on some of the recommendations and undertook to “carefully consider” the remainder.

There are currently no statutory fees for fulfilling initial requests. The possibility of introducing fees has also been raised. In a separate consultation, the Ministry of Justice floated a proposal to charge for appeals against FOI decisions taken to the First-tier Tribunal. Critics argue that fees at any level would deter requests and thus diminish the accountability of public bodies. The Government said that no decision would be taken on this matter until after the Independent Commission had reported.

In Scotland, the Freedom of Information (Scotland) Act 2002, an Act of the Scottish Parliament, covers Scotland-only public bodies. The Independent Commission had no remit to examine devolved legislation.