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Focus on Regulation

Moving FOIA forward: the Government gives its view

In July, as described on this blog, the Justice Committee published a post-legislative report on the operation of the Freedom of Information Act (“FOIA“). Last Friday, the Government published its response.

Unsurprisingly, in the context of its transparency agenda, the Government agrees with the principal finding of the Justice Committee that “FOIA has been successful in achieving its core aims of increased openness, transparency and accountability“. While admitting that there is little evidence to suggest that FOIA has had a positive impact either on public trust in public bodies or on public participation in decision-making, it states that FOIA is responsible for “significant enhancements of our democracy“. Accordingly, it remains committed to its expansion of the range of public bodies to which FOIA applies and accepts that some further reform is needed.

However, in a number of significant areas, the Government disagrees with and essentially rejects the recommendations of the Justice Committee (the “Recommendations“). For example, the Justice Committee recommended the introduction of 20 working day statutory time limits both for internal reviews and extensions of time to consider the public interest test but the Government rejects this approach. It does not consider that there is “a considerable problem with excessive delays” and states there are “appropriate remedies” in any case. The FOIA Code of Practice (the “Code“), it argues, is a suitably flexible mechanism for ensuring that public bodies deal with FOIA requests in a prompt manner, although it will consider rewording the Code to clarify, first, the meaning of “reasonable time” and, second, that a “good reason” is required to justify an internal review or an extension of time greater than 20 working days.

The Government also cuts across the Recommendations to ease the “significant cost” imposed on public bodies by FOIA. It rejects the Recommendation that the “time limit” for relying on the section 12 FOIA costs exemption should be reduced by two hours from 18 to 16, and instead states that more extensive reductions are likely to be necessary. It will consult both on that and the inclusion of the time taken to consider and redact information in calculating costs limits, and promises “comprehensive guidance” to ensure consistent calculation of the limits across public bodies. Finally, while agreeing with the Justice Committee that targeted charging is unworkable in practice, the Government states that it will examine the potential for requesters to contribute to the cost of tribunals, presumably through the payment of fees.

However, in a number of other areas, the Government’s response follows the Recommendations more closely. It seeks to address the perception, noted by the Justice Committee, that FOIA provides inadequate protection for policy-making leading to a lack of “safe space” and a “chilling effect“. In its assessment, the Government largely agrees with the Justice Committee that the legal framework of FOIA already offers sufficient protection, and that the Ministerial veto is the necessary tool for protecting vital Government information, but it suggests that the scope of the veto is wider than commonly thought. Noting the Justice Committee’s concerns surrounding the “exceptionality” of use of the veto, the Government states that it will examine its policy to clarify its scope and extent.

The Government also agrees with the Recommendation to monitor whether the section 43 commercial prejudice exemption is sufficient to secure a level playing field for public bodies in direct competition with the private sector, and with the Recommendation that contractual provision, rather than legislation, is the appropriate tool to ensure that a public body commissioning the private sector to provide services is able to meet its FOIA requirements. While stating that it does not intend “at this time” to legislate to extend FOIA obligations to  private contractors, there appears to be a veiled threat that such legislation might be introduced in the absence of private sector co-operation in this area.

Finally, the Government takes up the Recommendation of amendments to section 22 FOIA to ensure adequate protection of University research. It will seek to introduce a dedicated exemption subject to both a prejudice and a public interest test.

It is noticeable that the Government’s proposals are generally qualified by the Government’s intention to “review“, “consult” or “explore” further. Nevertheless, at least under this Government, it seems that FOIA is very much in vogue, and that at least some reform can be expected in the near future.