The Independent Commission on Freedom of Information has recently issued a call for evidence as part of a review which may herald comprehensive changes to the Freedom of Information Act 2000 (“FOIA“).
The Commission, established amid concerns that the current regime does not adequately protect sensitive information (see our previous blog post), will consider how best to balance the public interest in transparency and accountability, and the need for sensitive information to be protected.
The deadline for responses is midnight on Friday 20 November 2015.
Greater protection for public authorities?
The first area under scrutiny is whether FOIA provides “a “safe space” for policy development and implementation and frank advice“. This “safe space” covers three strands:
- the deliberative space, in which ministers and officials can discuss policies frankly;
- Cabinet’s collective responsibility, allowing ministers to express their views honestly in private, whilst maintaining a publically united front; and
- risk assessments, which must fully detail the risks of policies in development.
Under the qualified exemptions in ss. 35 and 36 FOIA, information relating to policy development may only be withheld if there is a public interest in doing so. The Commission’s questions suggest that it is considering whether these exemptions should be extended, for example applying absolutely for a minimum time following a policy decision, regardless of public interest.
Additionally, the Commission is considering whether a ministerial veto should exist following the Supreme Court’s judgment restricting use of the veto in Evans v Attorney General. The Commission may recommend greater powers for ministers to veto FOIA requests or suggest further safeguards to ensure that previously vetoed information remains protected.
The cost of reducing the burden
To reduce the burden on public authorities, the Commission is contemplating introducing a fee for making a FOIA request. Although it was expected, during the passage of the Freedom of Information Bill, that a fee would be charged for making a request, no such requirement was ultimately implemented. The Commission notes that fees for information requests are common in other jurisdictions and that fees are currently charged in the UK for similar information access schemes, such as a subject access request under the Data Protection Act 1998. The introduction of a fee may well have a deterrent effect on requests for information under FOIA.
Public authorities may currently refuse FOIA requests where the cost will exceed certain limits. The Commission, however, highlights that only certain activities are counted in calculating the cost of a request. Activities such as reading and redacting the information are not included. The Commission seems to be considering the possibility of expanding the range of activities that are counted, which could enable public authorities to refuse more requests on cost grounds.
Although there is a clearly a need for some protection to allow effective policy development, the Commission’s proposals definitely represent an attempt to decrease the transparency and accountability currently afforded by the FOIA regime. Introducing fees and making it easier for public authorities to refuse requests on cost grounds would inevitably cause a drop in successful FOIA requests: the Commission will need to be careful to balance the importance of the public’s right to access information against the burden on public authorities.