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Focus on Regulation

FOIA finally receives some support

The Justice Committee has this week published its report on the Freedom of Information Act (“FOIA“),[1] with the media leaping on its criticism of Tony Blair’s failure to provide it with oral evidence.  Contrary to Mr Blair’s suggestion in his book that FOIA has proved to be “antithetical to sensible government“, the Committee concludes that FOIA “has been a significant enhancement of our democracy” and that it has achieved the primary aims of improving transparency and accountability.  The Committee also considered a range of suggestions for reform (primarily seeking to limit the scope of the Act), and, to a large extent, rejected them. 

In particular, other high profile witnesses to the Committee, including the Rt Hon Jack Straw MP and Sir Gus O’Donnell, had suggested that FOIA was inappropriately impinging on the “safe space” required by Ministers and civil servants to develop public policy.  The Committee acknowledged the weight of such observations, but accepted that there were contrary views and that it was extremely difficult to draw any firm conclusions as to whether there really was a “chilling effect” on policy makers.  Given the existing exemptions for information regarding such policy debates and the Ministerial veto, the Committee did not consider there was any justification for diminishing the openness established by FOIA.   

The Committee also received many complaints about the costs of complying with FOIA, but it recognised that the resultant exposure of “misspending“, or just the threat of exposure, had significant financial benefit by way of an incentive on public authorities not to misuse their finances, which counterbalanced these costs.  The Committee did, however, accept that the “time limit” for relying on the section 12 costs exemption could be reduced, suggesting a two hour reduction from 18 to 16, subject to a cost-benefit assessment by the Government. 

The Committee otherwise rejected calls for the imposition of a fee for all requesters (from amongst others, former Justice Secretary, the Rt Hon Jack Straw), or even just a fee on those who may commercially benefit from information (journalists or private companies) on the basis that such fees would be antithetical to the general principles of “requester blindness” and openness.  It also rejected suggestions concerning the strengthening of provisions regarding the refusal of vexatious requests and the inclusion of frivolous requests in those provisions for similar reasons. 

Despite receiving some evidence regarding delays on the part of public authorities in providing an initial response to a request, the Committee considered there to be “relatively few” such complaints.  It did, however, consider there to be merit in introducing statutory time limits for when a public authority needed more than the initial 20 working days, as well as for internal reviews (in each case, 20 working days, subject to further extensions where consultation with third parties was required), in an effort to avoid public authorities being “able to kick requests into the long grass“.  The Committee also recommended that public authorities be required to publish data on the timeliness of their responses.  

The Committee gave brief consideration to the commercial prejudice exemption in section 43 of FOIA and the application of FOI to outsourced public services.  It considered that the right to access should not be undermined by the increased use of private providers in delivering public services, but that that right could be adequately protected by appropriate contractual provisions.  The Committee did, however, leave open the possibility of private companies providing public services being designated for the purposes of FOIA if contracts are unable to provide insufficient openness. 

Finally, the Committee also suggested minor amendments to ensure that University research and researchers were appropriately protected, but rejected calls for the removal of such institutions from the remit of FOIA.  

It will now be necessary to wait to see whether the Government accepts the Committee’s conclusions that FOIA is essentially fit for purpose, or whether it will pursue more significant amendments to reduce its scope.  Irrespective of the Government’s position, for private companies contracting with the public sector, it seems likely that there will be increased contractual requirements for disclosure of their information, with the risk that such companies will in future be made subject to FOIA disclosure requirements should their contracts fail to provide sufficient transparency.  

27 July 2012

[1] House of Commons Justice Committee, Post-legislative scrutiny of the Freedom of Information Act 2000: First Report of Session 2012-13 (26 July 2012).