The Independent Commission on Freedom of Information published its report on the operation of the Freedom of Information Act (FOIA) on Tuesday this week. At the same time, the Government published a written ministerial statement setting out its initial response to the report.
Readers will recall the fears expressed by transparency campaigners that the Commission's work would lead to a weakening of FOIA, and make it easier for requests to be refused. In a somewhat unexpected development, the thrust of the Commission's report is refreshingly positive about FOIA:
"It is the conclusion of the Commission that the Act is generally working well, and that it has been one of a number of measures that have helped to change the culture of the public sector. It has enhanced openness and transparency. The Commission considers that there is no evidence that the Act needs to be radically altered, or that the right of access to information needs to be restricted."
If anything, the Commission endorses measures to enhance transparency and an increase in requestors' rights in relation to FOIA requests.
The Commission's twenty one recommendations make for fascinating reading (especially some of the statistics!) and respond to many of the day-to-day gripes expressed by both requestors and those responsible for FOIA compliance within public authorities.
Rather than listing them one-by-one, we've identified the five recommendations we think readers of Information Matters will find most interesting:
1. Sensible recommendations to tackle delays. The Commission has clearly been persuaded by arguments that delays in responding to requests are frustrating requestors' rights, and accordingly the Commission recommends strengthening FOIA to introduce a change the way authorities extend the time for responding to consider the public interest test work and a fixed 20 working day deadline for conducting internal reviews. As you may be aware, this period is currently open ended and subject only to being responded to within a "reasonable" time frame.
2. More transparency about the nuts and bolts of how FOIA is working. The Commission recommends new legislation to require larger public authorities (100+ employees) to publish their FOIA compliance statistics and all of their responses to requests. This seems sensible enough, and, of course, many public authorities already maintain a disclosure log of responses and the responses to many requests can already be found on the whatdotheyknow website.
3. Section 36 and the qualified person's opinion. The Commission recommends abolition of the "outdated and burdensome" requirement to obtain the reasonable opinion of a public authority's qualified person in order to rely on section 36 FOIA, which protects information where disclosure would prejudice the effective conduct of public affairs. In our experience, smaller public authorities often (unduly) shy away from relying on this important exemption because of the procedural difficulties associated with having to obtain the qualified person's opinion. At the same time, larger public authorities face delays in obtaining the 'QP's' opinion, as it is usually someone very senior within the organisation.
4. Abolition of appeals the Information Tribunal. Reflecting concerns about the complexity and cost of the appeals process the Commission was "struck by the abundance of appellate bodies under the existing system whose role is to carry out a full merits-based review of any decision to refuse an information request". The Commission therefore recommends that the Government legislates to remove the right of appeal to the First-tier Tribunal against the ICO's decision notices. This would have two important implications. First, the stakes at the stage of complaint to the ICO would be much, much higher, especially as there is no proposal that the ICO carries out oral hearings. Secondly, appeals to the Upper Tribunal (on a point of law only) would be much more common, with requestors keen to find any argument possible to get the ICO's determination overturned by the courts. In any event, we venture that this change won't be happening any time soon.
5. New statutory guidance on section 14. Finally, in case the Court of Appeal's judgment in Dransfield last year wasn't the end of the matter - the Commission recommends yet more guidance on s14 FOIA, by way of an update to the statutory Code of Practice, reflecting concerns raised by the Information Commissioner about the risk of his own guidance being overturned by the courts.
All eyes are now on the Government to see whether the Commission's recommendations will be implemented, especially those which would require a change in the law.
You can read the Commission's full report via this link.
If you require further information on anything covered in this briefing please contact Jeremy Isaacson([email protected]; 020 3375 7513) or your usual contact at the firm on 020 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, March 2016