Yesterday the Justice Committee published its report into the Freedom of Information Act 2000 (FOIA) following its post-legislative scrutiny of the Act. I have already looked at the committees report insofar as it relates to the big FOI battles and in this post will look at the recommendations of the Committee that will strengthen the Act. You can read the first blog post here.
One of the big frustrations about the way in which the FOIA operates currently is the way in which public authorities can kick requests into the long grass. Under s.10(1) of the FOIA public authorities must respond promptly to a request and no later than 20 working days following its receipt. There is an exception to this time limit provided for in s.10(3) of the FOIA which means where public authorities are having to consider the public interest they can take such time as is reasonable in the circumstances. This has come to be known as the “Public interest extension”. There is no upper limit on this and public authorities can (and do) take months to provide a response to a request. The Committee has dealt with this point in its report by recommending that the current good practice guidance of the Commissioner be put into statute. In essence this would mean that a public authority could only extend the initial 20 working day deadline by a further 20 working days to consider the public interest test. Any further delay would only be permissible where a third party has to be consulted. I understand the Committee’s reasoning behind the further extension for third party’s as it can be difficult to get private companies or individuals to respond in a manner that is timely so as to meet the time limits in the FOIA. However, I would want to see other public authorities excluded from such an extension. There is no excuse for another body subject to the Act not to respond promptly when they need to be consulted about a disclosure.
Another area of frustration is the length of time taken to conduct internal reviews. In Scotland, we have had since the introduction of our Freedom of Information legislation a clear 20 working day limit on internal reviews. In the FOIA the only real time frame was the requirement for a prompt determination under the code issue by the Justice Secretary pursuant to s.45 of the Act. The Information Commissioner has issued guidance on internal reviews saying that they should normally be conducted in 20 working days and certainly no longer than 40 working days. However, some authorities have had great difficulty in complying with this good practice guidance and it is clear that a statutory timeframe is needed. So, it is very much welcome that the Committee makes such a recommendation. The Committee said:
It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews
The Committee has recommended that a statutory time limit of 20 working days be placed on internal reviews. Disappointingly though they also recommend that this can be extended by a further 20 working days where it is a particularly complex or voluminous request. Putting it on a statutory footing will give the Commissioner some additional “bite” when it comes to dealing with extraordinarily long delays in dealing with internal reviews. It will also provide a clear point at which a s.50 complaint can be made. I would suggest that, as with the current position on the s.10(1) deadline, that a applicant should be notified within the initial 20 working day limit, in writing, when the deadline for a review is being extended. That reflects current good practice of the Commissioner that is frequently ignored by authorities, even those who rarely take longer than 40 working days to consider a review.
Another welcome recommendation in the report is to the time limit on brining a prosecution under s.77 of the Act. It is clear that the current position of a prosecution having to be brought within 6 months of the offence being committed is impractical. Even with the strengthening of the time authorities have to respond to requests and internal reviews the Commissioner would be left with insufficient time to find sufficient evidence to bring such a prosecution. Even in Scotland where there are two clear periods of 20 working days (one each forthe initial response and the internal review) the ineffectiveness of the equivalent provisions has been noted. The Justice Committee has suggested that the offence be made an “either way” offence meaning that the 6 month time limit is no longer an issue. It has also recommended an increase in the maximum penalty from £5,000.
This is important because the Commissioner has said publically a number of times that he has seen evidence of offences being committed under s.77 but has been powerless to do anything about them. The Committee said in its report:
The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.
This is a clear message from the committee then to those authorities that engage in criminal activities to avoid answering FOI requests.
I wrote recently, in light of the G4S Olympic shambles, on whether private companies delivering large public sector contracts should be subject to the FOIA in their own right. I concluded that there certainly is a case for large companies carrying out public sector contracts to be covered by the FOIA in their own right making them more accountable to the public. The Committee though does not see the need for such action to be taken and state:
We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.
The committee is satisfied that the current system of placing clauses in contracts to ensure that private companies need to co-operate with public authorities on FOI is sufficient. The power of course is there for partial designation and the Government should not be afraid to use it. The Committee clearly doesn’t rule out entirely the use of s.5 of the Act. The Information Commissioner and the Government should be monitoring the situation closely and be willing to partially designate a private company where problems exist.
One final recommendation made by the Committee that I want to look at is in relation to Disclosure logs and the publication of the names of those making information requests. Currently, no public authority who operates a disclosure log publishes the name of the person who made the request. The Commissioner doesn’t publish the name of applicants in decision notices either (although the Scottish Information Commissioner routinely publishes the names of both parties in decision notices).
There are Data Protection considerations here. Publishing the name of applicants would be considered as processing personal data. The Commissioner doesn’t publish the names of applicants in his decision notices because of Data Protection. The Scottish Information Commissioner doesn’t have any bother, although this might be down to the way in which it is approached. From the outset applicants for a decision under s.47(1) of the Freedom of Information (Scotland) Act 2002 are told of the Scottish Commissioner’s view on publishing names and are given an opportunity to state why they believe their name should not be made public. If the Commissioner hears of no reasons at all it could be said that people have effectively consented to their name being made public as part of the decision notice.
Until there is a statutory basis of such a move public authorities would be well advised not to take such a step so as not to get into bother with the ICO (who regulates data protection as well as the FOIA). It is a complex issue and one that I might devote a future blog post to.
On the whole I am very pleased with the report that has been published by the Justice Select Committee. It is both fair and balanced. It makes it clear that FOI is of a greater benefit than it is cost and I hope that the Government accepts its recommendations. Change to the Act is some way off though. The content of the report will need to be considered by the Ministry of Justice and the Cabinet. I wouldn’t expect to see a Bill making amendments to the Act before early next year and it could be the end of next year before any changes made come into effect. However, this report will certainly make it much harder for the Government to introduced amendments that will weaken the Act and will hopefully make those who continually try to discredit the Act quieten down, for a while anyway.