1 Introduction
1. On 20 December 2011 the Ministry of Justice
submitted its Memorandum on Post-Legislative Scrutiny of the Freedom
of Information Act 2000 to us.[1]
Process of the inquiry
2. On 20 December 2011 we published the following
terms of reference asking those making submissions to the inquiry
to consider:
- Does the Freedom of Information
Act work effectively?
- What are the strengths and weaknesses of the
Freedom of Information Act?
- Is the Freedom of Information Act operating in
the way that it was intended to?
3. We received 140 pieces of written evidence
and took oral evidence from 37 witnesses in 7 evidence sessions.
We are grateful to all those who took part in the inquiry.
4. A number of sections of the Freedom of Information
Act (the Act) appear to be working well and we received little
or no evidence on them. In making recommendations, we therefore
focused on the provisions of the Act that have come in for the
most criticism.
Access to information before 2005
5. Central Government in the UK has traditionally
been regarded as secretive. Before 2005, information was released
through official documents, press bulletins and leaks from politicians
and civil servants. In April 1994, the then administration introduced
a Code of Practice on Access to Government Information. It was
intended as an alternative to a statutory right to access information.[2]
While the Code covered only "reasonable"[3]
requests for information, rather than documents, and contained
some broad exemptions[4]
it was, like the Act, both retrospective and intended "to
improve policy-making and the democratic process by extending
access to the facts and analyses which provide the basis for the
consideration of proposed policy."[5]
In 2001, the then Parliamentary Ombudsman, Michael Buckley, found
that while some departments followed the Code in a "clear
and efficient" way others failed to abide by either the letter
or the spirit.[6] The Code
was superseded by the coming into force of the Freedom of Information
Act 2000.
6. Local government was subject to several different
information access regimes from the 1960s onwards.[7]
As we heard from the Assistant Chief Executive of Leeds City Council,
some also had voluntary freedom of information regimes.[8]
Bodies coming under the aegis of the Health Commissioner were
subject to the Code of Practice on Openness in the NHS from July
1995.[9] Other organisations
had local policies on accessing information.[10]
7. The Labour Party pledged to introduce freedom
of information legislation in its 1997 manifesto, echoing a commitment
in earlier manifestos.[11]
The White Paper, Your Right to Know, described the position
on access to public information in 1997 as "[...] haphazard
[...] based largely on non-statutory best practice arrangements
(in particular the central government Code of Practice on Access
to Government Information) with statutory requirements for openness
applying only in certain areas such as environmental information,
or limited to particular sectors of the public service, notably
local authorities."[12]
A Bill was presented to Parliament on 18th November 1999.[13]
The Act received Royal Assent on 30 November 2000. The provisions
of the Act came into force on 1 January 2005.
8. The Rt Hon Jack Straw MP, who was Home Secretary
at the time the Act was passed, told us that the Act was the then
Prime Minister, the Rt Hon Tony Blair's, idea.[14]
We noted, however, that Mr Blair has described the right to access
information as "antithetical to sensible government"
and that he said he had been a "nincomp
oop" for his role in the legislation.[15]
We sought to question Mr Blair on his opinions but he refused
to defend his views before us in person and did not submit answers
to our written questions by the time this report was prepared.
We deplore Mr Blair's failure to co-operate with a Committee of
the House, despite being given every opportunity to attend at
a time convenient to him.
9. In the 12 years since the Act was passed the
world of information recording, supply and storage has been revolutionised.
As the Rt Hon Jack Straw MP, who was Home Secretary at the time
the Act was passed, observed: "When we drafted the Freedom
of Information Act, we had no serious conception about the internet,
which was in its infancy."[16]
Throughout this inquiry we have borne in mind the fact the Act
has not operated in isolation but in a complex and rapidly changing
technological world. While in some areas the effects of the Act
can be disaggregated from other influences, in the main the Act
is only one of a number of factors. We have therefore sought to
focus on practical solutions to the challenges posed by and to
the Act in a new information age.
10. In evidence to us, Lord Hennessy of Nympsfield
described the changes he had seen in record and archive-keeping
over the years:
If you look at the archives that were created before
there was even a 50-year rule, in 1958, they are very full. The
30-year rule is still very full indeed. I do fear that historians
[in future] are going to have a much tougher time for two reasons.
One is [freedom of information], but there is also the digital
revolution. It ceases to be a paper culture.[17]
Lord O'Donnell also observed that "the National
Archives people told me that digital records deteriorate faster
than paper records."[18]
The impact of digital culture and technological change on the
quality of the national archives is not an issue we have explored
in this inquiry but we intend to return to this matter in the
future.
1 Memorandum to the Justice Select Committee,
Post-Legislative Assessment of the Freedom of Information Act
2000,Cm 8236 (from here on referred to as Memo) Back
2
Open Government (1993) Cm 2290 para. 1.8 Back
3
Code of Practice on Open Government (1994) Part I, para
1 Back
4
Ibid, Part II Back
5
Ibid. Back
6
Office of the Parliamentary Ombudsman, First Report of Session
2000-2001, Access to Official Information, HC 126 Back
7
Ev 150 Back
8
Q 389 Back
9
The text of the Code can be found at http://www.cfoi.org.uk/nhscoptext.html
Back
10
Ev 170 Back
11
New Labour, New Britain (1996), http://www.labour-party.org.uk/manifestos/1997/1997-labour-manifesto.shtml/
Back
12
Cabinet Office, Your Right to Know: The Government's
Proposals for a Freedom of Information Act, Cm 3818, December
1997 Back
13
http://www.publications.parliament.uk/pa/cm199900/cmbills/005/2000005.htm Back
14
Q 333 Back
15
Tony Blair, A Journey, (London 2010), p516 Back
16
Q 327 Back
17
Q 255 Back
18
Q 287 Back
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