Government responds to Justice Select Committee on FOIA

Almost one week ago the UK Government finally issued its response to the Justice Committees detailed and quite frankly excellent post-legislative scrutiny of the Freedom of Information Act 2000.  I am now finally getting round to putting my thoughts on the Government’s response to the Justice Committees report (although I have already written to my MP to highlight some of my major concerns with the Government’s response).

I don’t wish to give the impression that the Government’s response is a complete disaster for Freedom of Information; there are many good and bad things about their response.  I will start first with things that (in my view) are worth highlighting as “good” things from the Government’s response before turning to the (in my view) “bad” things.

To be celebrated is the clear indication from the Government that they do not consider their own “open government” agenda as being a replacement for FOI.  The Government’s response described the two agendas as “complimentary” to one another.  This is a clear recognition by the Government that Freedom of Information plays an important role in our democracy.  The Justice Committee said in their report that the FOIA “has been a significant enhancement of our democracy”.

Another big thing to celebrate from the Government’s response is that FOI requests are to remain free.  There was a push by a number of public authorities during the evidence stages of the post-legislative scrutiny (which was evident before the post-legislative scrutiny and after) for there to be charges for making information requests.  The Government isn’t convinced though and has ruled out charging for requests saying:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act.

This is welcome news because we only have to look to Ireland to see what damage charging for requests can do to Freedom of Information.

One final thing from the Government’s response I personally think is worth celebrating is a change to the rules on prosecuting authorities under s.77 of the Act.  Currently a prosecution under s.77 has to be launched within 6 months from the date of the offence.  It can easily be more than 6 months since the offence before the Information Commissioner’s Office begins to investigate a complaint under s.50 (a likely time for a s.77 offence to be discovered).  The Government has rejected the Justice Committee’s proposals to make it an “either way offence” (meaning it could be tried in the Crown Court); however, it has indicated that it will change the Act so that the six months to bring a prosecution starts when the offence is discovered rather than from when it is committed.  This means that if the ICO discovers s.77 offences it can now prosecute them.  The Information Commissioner did say in evidence to the Justice Committee that his office had seen evidence of destruction of information after a request had been made (an offence under s.77) but they had simply not been able to get them to court in time.

Having looked at the things worth celebrating from the Government’s response; it is time to turn to the things that are a cause for concern.

Some people have placed the first thing that I wish to address in this section as something to celebrate.  However, I do not share that view and I will explain why I consider it to be a bad thing.  In their report the Justice Committee suggested making the timeframe for internal reviews statutory.  This is the position in Scotland under the Freedom of Information (Scotland) Act 2002 (s.21(1) provides that a review must be carried out promptly and no later than the 20th working day following receipt).  The Government has decided not to implement this recommendation and has instead suggested providing guidance in the s.45 Code of Practice on the conduct of internal reviews.  There is currently advice on timescales for the carrying out of reviews; that is provided by the Information Commissioner’s Office in ‘Good Practice Guide (No. 5)’ which sets out a timescale similar to that found within s.10(1) of the FOIA for initially responding to a request.

The problem is that a great number of authorities seem to frequently take considerably longer to conduct reviews than the time set out in the Commissioner’s Guidance.  Some of these authorities are central government departments; which doesn’t hold out much hope for compliance with guidance in the s.45 Code of Practice.  I can’t see how providing guidance to deal with a failure to apply guidance as to good practice will address the problem.  It seems to me that building in a statutory framework on internal reviews is what is needed here (as is tightening up the public interest extension at s.10(3) of the Act).  It is important to note though that there are a great many public authorities who conduct internal reviews diligently and don’t kick them into the long-grass.  It is also important to note that the Government is of the view that reviews should be carried out quickly.  I don’t see why they can’t put that view into statute rather than a Code of Practice.

Another concern is the Government’s indication that it will continue to consider what else could be included in the cost caulcations.  For those with a limited knowledge of FOI; there exists the “appropriate limit” which if a request exceed the public authority can refuse to comply with the request.  The current appropriate limit is £600 (for central government) or £450 (for other authorities).  Furthermore, if the time taken to comply with the request exceeds 24 hours work (for central government) or 18 hours work (all other authorities) then the public authority can refuse to comply with the request.  In respect of time taken to deal with the request there are certain activities which cannot be included in the calculation.  The time taken to consider whether the information can be disclosed or the time taken to redact exempt information currently cannot be included.  The Government is considering whether both of these activities could be included in these calculations.

There is a major problem here in that it is hard to objectively judge reading and redacting time.  One FOI officer in one authority might take longer to read and consider information than another FOI officer in another authority considering the same information.  It becomes about the ability of individual FOI officers.  Moreover, it risks meaning that large volumes of information might be refused simply because it will take a long time to consider the information.  It would also mean that cases where the public interest is finely balanced could be refused because it will take too long.  This could conceivably prevent important information exposing wrongdoing in a public authority from being revealed.  It would, in my view, fundamentally undermine the purposes of the FOIA.  The Government is also considering slightly reducing the current 24/18 hours limits.

Another issue, which I hadn’t initially picked out, is the Government’s indication that multiple requests by one person on unrelated issues to a public authority could be grouped together.  Currently, making multiple requests on the same (or substantially similar issues) can be grouped together for the purposes of the repeated/vexatious exemption.  Permitting the grouping together of unrelated requests by a named individual or group will likely harm journalists.  One of the fundamentals of the FOIA is that it is supposed to be “applicant blind” there is no way that such a change could be implemented which wouldn’t harm journalists without giving consideration to the identity of the applicant.  Imagine the effect on large organisations like the BBC or large national newspapers that might make a large number of requests on different issues to public authorities.  As a result of this change a request which could uncover wrongdoing could be refused because they’ve exceeded their “quota” of FOI requests to the public authority.

Another concerning issues is the Government’s apparent intention to extend the use of the so called “ministerial veto”.  This would be concerning if the veto was to be used widely an in circumstances that are not exceptional.  The point of the ICO and appeals from there to tribunals and the courts is to allow independent people to consider the request and information objectively.  It would undermine the purposes of FOI if the Government were regularly to become the final arbiter of what information they hold gets released.  We’ve already seen an increased use of the veto since the 2010 election; most recently to hide the content of letters Prince Charles had sent to a number of Government departments.

On the whole; there are some excellent things from the Government’s response that will strengthen FOI.  However, there are also things which are of concern and could weaken the FOI regime and should be opposed if the Government tries to introduce them.  No doubt there will be further blog posts on FOI to come as both the UK and Scottish Government’s go about amending the respective FOI legislation.

If you’ve read the blog post to the end then thanks and congratulations!  I could have said much more, but didn’t want to write a full-blown essay on the Government’s response.  The Government’s response can be read here.