Briefing

Information Matters: Independent Commission on Freedom of Information - your chance to have a say on the future of FOI

Posted by: Peter Wienand and Jeremy Isaacson | Date posted : 04/11/2015

Readers of Information Matters will have found it difficult to miss the increasingly heated debate surrounding FOI reform, which reached a new level when the Independent Commission on Freedom of Information issued its Call for Evidence last month, with various claims and counterclaims that new sweeping restrictions to FOI are being considered by the Commission.

Appraising the political arguments about FOI reform is well beyond the scope of a short note such as this, but we did think that readers of Information Matters would value a reminder that the Call for Evidence is still open and inviting evidence from a range of interested parties.

Colleagues working in information governance for public authorities are likely to want to consider whether they would like to submit evidence to the Commission. At the same time, there is obviously nothing to prevent organisations who are not public authorities but are nevertheless interested in FOI (e.g. because you share information with regulators or other organisations who are subject to FOI) from submitting evidence.

The Call for Evidence itself makes for interesting reading, not least because of some of the interesting sections describing how other jurisdictions’ deal with transparency, and the different options for structuring FOI laws.  We’ll have to wait and see quite how much of a blueprint they might prove for the UK.

For the purposes of submitting evidence now though, respondents have been asked to focus on the following questions:

  • Question 1: What protection should there be for information relating to the internal deliberations of public bodies? For how long after a decision does such information remain sensitive? Should different protections apply to different kinds of information that are currently protected by sections 35 and 36?
  • Question 2: What protection should there be for information which relates to the process of collective Cabinet discussion and agreement? Is this information entitled to the same or greater protection than that afforded to other internal deliberative information? For how long should such material be protected?
  • Question 3: What protection should there be for information which involves candid assessment of risks? For how long does such information remain sensitive?
  • Question 4: Should the executive have a veto (subject to judicial review) over the release of information? If so, how should this operate and what safeguards are required? If not, what implications does this have for the rest of the Act, and how could government protect sensitive information from disclosure instead?
  • Question 5: What is the appropriate enforcement and appeal system for freedom of information requests?
  • Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? Which kinds of requests do impose a disproportionate burden?

Colleagues working for universities, museums, galleries and smaller public authorities (i.e. not local or central government) - which have been broadly forgotten as public authorities because the debate focusses on the organs of central government - will we think have a unique perspective on the questions posed.  Indeed, with the exception of questions 2 and 4, readers who work for smaller public authorities which do not have the luxury of large teams/systems dedicated to FOI handling will want to make their views on questions 1, 3, 5 and 6 known.

The Call for Evidence closes on Friday 20 November and please let us know if you are considering making a submission and would like to discuss it with us.

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If you require further information on anything covered in this briefing please contact Peter Wienand (peter.wienand@farrer.co.uk; 020 3375 7355), Jeremy Isaacson (jeremy.isaacson@farrer.co.uk; 020 3375 7513) or your usual contact at the firm on 020 3375 7000. Further information can also be found on the IP & Technology page on our website.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP,  November 2015