Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents


The Freedom of Information Act has been a significant enhancement of our democracy. Overall our witnesses agreed the Act was working well. The Freedom of Information Act has achieved its three principal objectives, but its secondary objective of enhancing public confidence in Government has not been achieved, and was unlikely to be achieved. It should be emphasised that the right to access public sector information is an important constitutional right, a fact that can get lost in complaints about the operation of the freedom of information regime. We do not believe that there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits.

The cost of administering the Act has been described as its "Achilles heel". However, the cost to public authorities must be weighed against the greater accountability the right to access information brings. In addition, there is evidence of both direct cost savings, where a freedom of information request has revealed erroneous public spending, and an indirect impact whereby public authorities know that they will be exposed to scrutiny as a result of the Act and use resources accordingly. We have recommended a limited reduction in the amount of time an organisation has to spend on each request to reduce the burden on hard-pressed public bodies to allow them to take greater advantage of the exemption in section 12, although we expect a rigorous cost-benefit analysis to be carried out by the Government before the exact time limit is determined. We would also encourage proactive publication by public bodies, while acknowledging that the diverse subject matter of requests means this is unlikely significantly to reduce the number of applications made.

We do not recommend changing the system of 'requestor blindness' on which the Act operates. Requiring requestors to identify themselves could be circumvented by the use of another's name and policing such a system would be expensive and likely to have a limited effect. Equally, the focus of the Act is whether the disclosure of information is justified; if data should be released under the Act then it is irrelevant who is asking for publication. However, requestors must expect that the fact they have requested information to be in the public domain when authorities publish a disclosure log.

We recommend that the time limits for consideration of the public interest test and internal reviews become statutory. As such limits have already been set out in guidance we do not expect this recommendation to have a significant effect on public authorities, but it underlines the importance of prompt attention to requests while making it clear to those who routinely delay responses that their approach will not be tolerated. We also recommend changing the time limit on charging someone with the offence of destroying or altering information under section 77 because of the difficulty of charging within six months of the offence being committed; a difficulty evidenced by the fact no prosecutions have taken place to date.

We acknowledge the irritation experienced by public authorities which receive frivolous or trivial requests but, since these can normally be dealt with quickly at minimal cost, we do not recommend any change in the law in this area.

We have considered the evidence of witnesses, particularly former senior civil servants and ministers, suggesting that policy discussions at senior levels and the recording of such discussions may have been inhibited by the Freedom of Information Act. Evidence of such an effect is difficult to find by its very nature, but there is clearly a perception in some quarters that there is no longer a sufficiently 'safe space' for policy discussions. Parliament clearly intended that there should be a safe space for policy formation and Cabinet discussion, and we remind everyone involved that section 35 was intended to protect high-level policy discussions. We recognise that the ministerial veto may need to be used from time to time to maintain that safe space. We believe that civil servants and others in public authorities should be aware of the significance of these provisions and the protection they afford.

To ensure the continuing competitiveness of the university sector in England and Wales, we recommend the pre-publication exemption be amended to bring it in line with the similar provision in the Freedom of Information (Scotland) Act 2002. We have concluded, however, that the importance of universities in the public realm means they should remain subject to the Act.

We believe the public sector is generally maintaining the right of access to information when public functions are out-sourced by judicious use of contractual terms. Such contracts should clearly safeguard Freedom of Information rights. With the changing commissioning landscape, however, this is a matter which must be kept under review to ensure that there is no diminution of the reach of the Act, or the accountability it brings with it.

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© Parliamentary copyright 2012
Prepared 26 July 2012