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All change for Freedom of Information?

The Independent Commission on Freedom of Information published its report earlier this year. The Commission was tasked with reporting on how well the Freedom of Information Act 2000 is working and whether the correct balance is being struck between transparency and protecting sensitive information. 

Over 30,000 responses were received by the Commission, with a range of views expressed; from widening the scope of the Act to imposing restrictions to reduce the burdens associated with complying with requests. 

The opposing view surrounding the Act crystallised in the successful appeal by The Guardian. The publication was concerned with the Cabinet's ability to exercise a veto preventing the release of letters between HRH the Prince of Wales and ministers. This is thought to be one of the factors resulting in the setting up the Commission to review the effectiveness of the Act. 

The Commission's views 

The overall conclusion is that the Act does not require any significant changes to be made. It was concluded that the Act is "working well" and has been successful in enhancing openness and transparency. Despite this, the Commission has made 21 recommendations with 16 of those requiring legislative amendments to be made to the Act. 

The recommendations mainly arise from the Commission's view that there are aspects of the Act that are unclear. There were also uncertainties surrounding the operation of the Act.  

It was considered that there have been some interpretations of the Act that appear to have departed from its original intention. 

Recommendations 

The most pertinent recommendations relate to the government's exercise of a veto, respond times, publishing of information and the application of the Act to private companies,. Key recommendations include:

  • It is suggested that the Act should be amended to clarify whether the government does have a right to exercise a veto.  
  • Currently, there is no set time limit, which a public authority must comply with when applying the public interest test or conducting an internal review if the requester of information is unhappy with the authorities' decision. The recommendation is that time limits, of 20 working days, should be imposed for application of the public interest test and also to conduct an internal review. This would require legislative changes to be made to the Act. 
  • Of concern to some authorities might be the recommendation that those with 100 or more full time employees must now publish statistics on their compliance under the Act. The philosophy behind this is that it will make it easy for the public to assess the extent to which various authorities comply with the Act without the need to consult each authority individually. It is not clear whether compliance will be restricted to compliance generally or whether it will extend to compliance with the various timescales. New timescales for the public interest test and internal review will be needed if those recommendations are adopted. 
  • Possibly one of the most significant findings in the report is the possible extension of the Act to private companies that are providing public services. Strictly speaking, this was not one of the 21 recommendations of the Commission. Nevertheless, the effect of the report is that the Commission expresses a view that the Act should be extended in this way. It is suggested that this would be limited to public services carried out under a contract with a value of £5 million or more per financial year. This is important as the Act does not currently extend to private companies. This would require legislative amendment.

Consequences

Most of the recommendations require legislative amendments and cannot be implemented without the government taking positive action to adopt them. 
The government's response to date has been limited. They have indicated that the time scales recommendations will be adopted in a revised code of practice. But it is not currently the intention to amend the Act to give this legislative force. 

Nothing is likely to change in the immediate future. However authorities should review the new Code of Practice when it is published as this is likely to impose some additional obligations, even though these will not be a significant departure from the current regime.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

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