News 1st March 2016

OGN Members respond to the FOI Commission

by Tim Hughes

Following the publication of the Commission on Freedom of Information’s recommendations and the Government’s “preliminary views, members of the Open Government Network have issued the following responses.

This post will be updated as new responses are published.

Article 19


ARTICLE 19 welcomes the announcement of UK Government’s commitment not to revise the Freedom of Information Act (FOIA), following the release of the report of the Commission on Freedom of Information.

The Commission, which has been the subject of considerable controversy since its inception in 2015, made 21 recommendations. The Cabinet Office responded to the report stating that it was not prepared to propose any new legislation revising the Act and instead committed to making some minor improvements concerning the publication of statistics, and senior executives’ pay and expenses, alongside improved guidance. However, it did not rule out future legislation in some areas.

Thomas Hughes, Executive Director of ARTICLE 19, commented “The Freedom of Information Act has been a leading force in holding the Government to account and a shining example of transparency for countries around the world. Now it is time for the government to focus on improving implementation so that the peoples’ right to information is effective so that the British public can make full use of their right to information”

The Commission’s 60 page report included a number of positive recommendations on improving proactive publication of information, limiting delays and extending the act to private sector contractors.

However, the report also includes many controversial recommendations of which ARTICLE 19 would urge against implementation, including enhancing the Government’s power to veto the release of information, eliminating the First Tier Tribunal which reviews decisions of the Information Commissioner, and expanding the exemptions that allow officials to deliberate in secret.

The Commission received over 30,000 responses to the consultation, mostly calling for extending the Act, rather than limiting it.

Campaign for Freedom of Information

FOI Commission’s rejection of new restrictions welcomed

Today’s report from the Commission on Freedom of Information does not call for the severe restrictions that had initially seemed likely, according to the Campaign for Freedom of Information. The report sets out a mixture of proposals, many of which would enhance the FOI Act. However the Campaign says a proposal to remove the right of appeal against the Information Commissioner’s (IC’s) decisions to a specialist tribunal would undermine the Act’s enforcement system.

A statement issued last night by the Cabinet Office minister responsible for FOI, Matt Hancock, said the government “will not make any legal changes” to the FOI Act. The Campaign said this suggested that the Act would not be weakened.

The Campaign’s director Maurice Frankel said: “The Commission has stepped back from the one sided agenda which the government initially appeared to set for it, of restricting access to internal policy discussions, introducing charges for requests and making it easier for authorities to refuse requests. Instead it has also looked at the case for improving the legislation. The government itself has clearly been scalded by the criticism it has received from the press and public and made it clear it’s not prepared to take its initial agenda forward. We now need to ensure that the Act is extended to contractors providing public services and bodies like the National Crime Agency which have been deliberately excluded.”

  • The Campaign welcomes the Commission’s proposals that there should be no new absolute exemptions to protect policy discussions within government, Cabinet discussions or risk assessments. The Commission says it has been persuaded by evidence from the Campaign and the IC that the public interest test should continue to apply to this information. The Campaign says the possibility of removing the public interest test in these areas was one of the greatest threats raised by the Commission’s terms of reference.
  • The Commission also recommends against introducing charges for FOI requests, which it says could hamper investigations of public interest. The Campaign says this was the other major threat to the legislation. The government has accepted this recommendation.
  • The Commission has not recommended making it easier for authorities to refuse requests on cost grounds, though says it is sympathetic to allowing the cost of redacting exempt information to be counted when deciding whether the Act’s ‘cost limits’ has been reached. (At present requests can be refused in the cost of finding the information exceeds these limits.) However, it also acknowledges the case for increasing the cost limits themselves and requiring requests in the public interest to be answered even where the cost limit has been exceeded.
  • The Campaign said it is most concerned by the proposal to remove the right of appeal against the IC’s decisions to the First-tier Tribunal (FTT) which deals with FOI requests. This would make the IC’s decisions final, unless appealed on a point of law to the Upper Tribunal. The Campaign says the IC’s decisions are not consistently good enough to stand on their own in this way. Some 21% of FTT appeals by requesters are partly or wholly successful. “These requesters would have to live with unsatisfactory decisions if the right of appeal was removed” the Campaign said.
  • The Commission recommends that the ministerial veto should only be used against decisions of the Information Commissioner, not the tribunal or courts. It proposes new legislation to prevent appeals against Commissioner decisions where a successful appeal would otherwise have been vetoed in the past. The government has said it will not legislate for this at present. The Campaign has always opposed the ministerial veto in principle and says the proposals may lead to the veto being used more frequently in future.
  • The Commission endorses a proposal made by the Campaign that information held by contractors delivering public services, whether private companies or charities, should be considered as held on the authority’s behalf and thus be available via an FOI request to the authority. It suggests this should only apply to contracts worth £5 million a year or more.
  • The Commission rejects the suggestion that universities should not have to comply with the FOI Act, saying that the suggestion that this would put them at a competitive disadvantage with private sector providers was ‘unpersuasive’.
  • The Commission also calls for the public interest test relating to internal discussions to be adapted to give explicit weight to the need to protect the discussion of policy options and collective responsibility and to make clear that the ‘safe space’ for discussions continues even after decisions are taken. The Campaign believes these considerations are already given weight and do not require legislative changes.
  • The Commission says time limits for responding to FOI requests should be tightened up and a statutory 20 working day limit for carrying out internal reviews introduced. It also says it should be easier to prosecute authorities which deliberately destroy requested information to prevent its disclosure.
  • The Commission calls for authorities employing 100 or more staff to publish their FOI compliance statistics, a recommendation the government has accepted. It also calls for these authorities to have to publish all information disclosed under FOI on their websites.
  • The Commission proposes that authorities should publish annually the total of senior employees’ expenses and benefits in kind with a breakdown by category, though these may be aggregate totals.
    It says the IC should be given greater resources to allow it to monitor whether authorities are complying with their duty to publish specified information routinely.
  • The Commission proposes that guidance issued to public authorities should be updated and should also encourage authorities to use the Act’s provision on vexatious requests where appropriate. 

Transparency International UK

Government must now release further detail on proposals

The UK Government’s announcement today that it will not be seeking to water down the Freedom of Information (FOI) Act is a positive signal that it is keeping to its stated open governance agenda.

No major changes to the law have been announced that could weaken this vital act, although Transparency International UK (TI-UK) believes that the failure to extend the Act to the private providers of public services is a missed opportunity.

Meanwhile the dismissal of plans to introduce charges for FOI requests is a very encouraging step, and the government now needs to make a full response on the Commission’s proposals, particularly in relation to the Ministerial veto on requests.

Robert Barrington, TI-UK Executive Director said:

“The FOI act is an extremely important tool to ensure institutions and officials are accountable to the public, and to detect and deter corrupt behaviour. There were fears in many quarters that the UK Government would seek to water down FOI Act and it is good news that this no longer seems to be the intention.”

“However extending FOI to the private providers of public services is a crucial test of how serious the government is on being truly open and transparent. The absence of any announcement on this is a missed opportunity and we strongly recommend that it is included in the government’s forthcoming Open Governance Partnership Action Plan.”

“There are also continuing concerns over how the government intends to use the Ministerial veto on FOI requests and its proposed role for the Courts in this process. Ahead of the Prime Minister’s planned Anti-Corruption Summit in May, further clarification is needed before the UK can say it has its own house in order.”