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

Conclusions and recommendations


1.  We agree with the Ministry of Justice that the Act has contributed to a culture of greater openness across public authorities, particularly at central Government level which was previously highly secretive. We welcome the efforts made by many public officials not only to implement the Act but to work with the spirit of FOI to achieve greater openness. Our evidence shows that the strength of the new culture of openness is, however, variable and depends on both the type of organisation and the approach to freedom of information of the individual public authority.
(Paragraph 17)


2.  While proactive transparency clearly has the potential to reduce the burden of responding to information requests on hard-pressed public authorities, the proactive publication of data cannot substitute for a right to access data because it is impossible for public bodies to anticipate the information that will be required. Nevertheless, proactive publication is important in achieving the primary objectives of the Act of openness and transparency. (Paragraph 31)

3.  Government must ensure that the freedom of information regime and the transparency agenda work together to ensure best value for money. Individual initiatives in different departments must be examined before implementation in the light of existing policy to see whether they constitute the most effective approach. Equally, existing initiatives should also be assessed after a period of time to ensure they both offer value for money and have not produced unintended consequences. (Paragraph 32)

Increasing public confidence in public authorities

4.  Our evidence on the impact of the Act on trust generally agreed with the findings of the Memorandum. Whether the Act will contribute to an increase in public confidence in the Government, Parliament and other bodies is primarily dependent on the type of information which is published following a request. The majority of people will receive information published under the Act through the media. Evidence of irregularities, deficiencies and errors is always likely to prove more newsworthy than evidence that everything is being done by the book and the public authority is operating well. In these circumstances, the expectation of a substantial increase in public trust following the introduction of the Act was always going to prove unrealistic. (Paragraph 37)

5.  Greater release of data is invariably going to lead to greater criticism of public bodies and individuals, which may sometimes be unfair or partial. In our view, however this, while regrettable, is a price well worth paying for the benefits greater openness brings to our democracy. (Paragraph 38)

Improving public participation in decision making

6.  Having received limited evidence on the impact of the Act on increased public participation in decision making, we would not seek to disagree with the findings of the Constitution Unit that this objective has not been achieved, at least in central Government. We welcome, however, the suggestion that, while the Act may not have had a direct impact on increasing public participation in decisions made in the NHS it has assisted in a move towards a culture of greater public involvement.
(Paragraph 43)

Costs and fees

7.  The Freedom of Information Act is a significant enhancement of our democracy. It gives the public, the media and other parties a right to access information about the way public institutions in England and Wales are governed, and the way taxpayers' money is spent. Governments and public authorities can promote greater transparency but, without FOI requests, decisions on what to publish will always lie with those in positions of power. FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure. (Paragraph 53)

8.  Developing a methodology whereby subjective activities such as reading and consideration time could be included in the 18 hour time limit does not seem to us to be a feasible proposition. Such activities are overly dependent on the individual FOI officer's abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information. (Paragraph 60)

9.  We recognise, however, that complying with its duties under the Act can be a significant cost to a public body. A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests. We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected under section 12, and the corresponding weakening of the right to access information. (Paragraph 61)

10.  The Act operates on the basis of requester blindness. As a result developing a way to charge requesters who commercially benefit from the information they receive from public authorities is difficult, if not impossible. Any requirement that requestors identify themselves could easily be circumvented by requestors using the name of a friend, family member or other person. Attempts to police such a system, either by public authorities or the Information Commissioner, would be expensive and likely to have a limited effect. (Paragraph 81)

11.  It must also be recognised that the focus of the Act is whether the disclosure of information is justified, not who is asking for that information. If the statutory scheme deems it right that data should be released then it is irrelevant who is asking for publication; release of such information is to all, not just the individual requestor. Nevertheless it can be argued that someone seeking to exercise freedom of information rights should be willing for the fact they have requested such information to be in the public domain; we therefore recommend that where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it. (Paragraph 82)

12.  While we recognise that there is an economic argument in favour of the freedom of information regime being significantly or wholly self-funding, fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act, while fees introduced for commercial and media organisations could be circumvented. (Paragraph 85)

13.  Any future reconsideration of the economic argument for charging would need significantly better data on the number of requests made under the Act and the costs incurred in responding to them. (Paragraph 86)

Lessons to be learn from local government

14.  Evidence from our witnesses suggests that reducing the cost of freedom of information can be achieved if the way public authorities deal with requests is well-thought through. This requires leadership and focus by senior members of public organisations. Complaints about the cost of freedom of information will ring hollow when made by public authorities which have failed to invest the time and effort needed to create an efficient freedom of information scheme. (Paragraph 90)

Compliance with time limits

15.  We were pleased to hear relatively few complaints about compliance with the 20 day response time. We believe that the 20 day response time is reasonable and should be maintained. (Paragraph 94)

Internal reviews

16.  It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews. Such reviews should not generally require information to be sought from third parties, and so we see no reason why there should not be a statutory time limit—20 days would seem reasonable—in which they must take place. An extension could be acceptable where there is a need to consult a third party. (Paragraph 103)

Other remedies for non-compliance with time limits

17.  We recommend that all public bodies subject to the Act should be required to publish data on the timeliness of their response to freedom of information requests. This should include data on extensions and time taken for internal reviews. This will not only inform the wider public of the authority's compliance with its duties under the Act but will allow the Information Commissioner to monitor those organisations with the lowest rate of compliance. (Paragraph 109)

18.  We recommend the 20 day extension be put into statute. A further extension should only be permitted when a third party external to the organisation responding to the request has to be consulted. (Paragraph 111)

19.  We recommend that a time limit for internal reviews should be put into statute. The time limit should be 20 days, as at present under the Code of Practice, with a permitted extension of an additional 20 days for exceptionally complex or voluminous requests. (Paragraph 112)

Destroying records-enforcement of section 77

20.  The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner's Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.(Paragraph 121)

Frivolous requests

21.  It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law. (Paragraph 135)

The attitude of requestors

22.  We believe it would be helpful for public authorities to indicate in a response letter how much responding to the request has cost, in approximate terms. We recommend the Information Commissioner consider the easiest way for authorities to arrive at such a figure. We think this unlikely to deter genuine inquiries but it will at least highlight to irresponsible users of the Act the impact of their actions. (Paragraph 138)

The safe space, exemptions and the ministerial veto

23.  Freedom of Information brings many benefits, but it also entails risks. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, at the heart of our system of Government, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information. One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a 'safe space' for policy making.
(Paragraph 154)

24.  It is evident that numerous decisions of the Commissioner and the Tribunal have recognised the need for a 'safe space'. However, equally evident is the fact that in some cases their decision that information should be disclosed has challenged the extent of that safe space. We accept that for the 'chilling effect' of FOI to be a reality, the mere risk that information might be disclosed could be enough to create unwelcome behavioural change by policy makers. We accept that case law is not sufficiently developed for policy makers to be sure of what space is safe and what is not. (Paragraph 166)

25.  While we believe the power to exercise the ministerial veto is a necessary backstop to protect highly sensitive material, the use of the word exceptional when applying section 53 is confusing in this context. If the veto is to be used to maintain protection for cabinet discussions or other high-level policy discussions rather than to deal with genuinely exceptional circumstances then it would be better for the Statement of Policy on the use of the ministerial veto to be revised to provide clarity for all concerned. We have considered other solutions to this problem but, given that the Act has provided one of the most open regimes in the world for access to information at the top of Government, we believe that the veto is an appropriate mechanism, where necessary, to protect policy development at the highest levels. (Paragraph 179)

26.  The Constitution Unit's research on FOI is the first major piece of research of its kind and is a valuable contribution to the debate around FOI. In its consideration of the chilling effect, the Unit broadly concluded that the effect of FOI appeared negligible to marginal. We note this finding and have taken it into account in our deliberations. However, we have also been cognisant of two related points: while respecting the overall conclusions, we note that the research did feature a number of interviews with participants which suggested behaviour had changed, at least in part because of FOI; secondly, as the Unit itself notes, if the chilling effect does exist it would, by its nature, be very difficult to find hard, objective evidence of it. That is why, on this subject, it is necessary at least to consider anecdotes and impressions, albeit they might lack the academic rigour on which we would ideally like to base conclusions. (Paragraph 190)

27.  If the most senior officials in Government are concerned about the effect of the Act on the ability to provide frank advice they should state explicitly that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary. (Paragraph 198)

28.  Since the passing of the Act other ways in which minutes and records are likely to be made public have developed which are likely to lead to greater publicity for the information disclosed than if it had been published under the right to access information. (Paragraph 199)

29.  We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act. On the one hand, the Constitution Unit's research—the most in-depth available—suggests it has only a marginal effect. On the other hand, a range of distinguished participants who are, or who have been recently, at the heart of the policy-making process attest that it is a problem. We see no reason why former senior ministers and officials in particular would flag this up as a concern if they did not genuinely believe it to be so, and we think their views are of value. However, so too of value is the increased openness introduced by the Act and, especially, the power of individuals to exercise their right to information proactively, rather than having public authorities decide what they will disclose, when and to whom, even when acting with the best intentions. Equally, there are other reasons why some officials and politicians may be increasingly reluctant to create paper records, not least the increasing possibility that some form of public inquiry may lead to the subsequent publication of minutes and records. That is why we are cautious about restricting the rights conferred in the Act in the absence of more substantial evidence. (Paragraph 200)

30.  Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a "safe space" for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions. We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space. (Paragraph 201)

The pre-publication exemption in Scotland

31.  We recommend section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland. While the extension of section 22 will not solve all the difficulties experienced by the universities in this area, we believe it is required to ensure parity with other similar jurisdictions, as well as to protect ongoing research, and therefore constitutes a proportionate response to their concerns. Whether this solution is sufficient and works satisfactorily should be reviewed at a reasonable point after its introduction. (Paragraph 214)

The Act and the Animal (Scientific Procedures) Act 1986

32.  As section 24 of the Animal (Scientific Procedures) Act 1986 remains under review by the Home Office following changes in European law we make no recommendation as to how the Government should act but will consider the outcome of the review when it is received. It should not be necessary to amend the Freedom of Information Act to meet the concerns of universities in this area. (Paragraph 221)

33.  We strongly urge universities to use to the full the protection that exists for the health and safety of researchers in section 38 of the Act, and expect that the Information Commissioner will recognise legitimate concerns. No institution should be deterred from carrying out properly regulated and monitored research as the result of threats; this was not Parliament's intention in passing the Act and we are happy to reiterate that that remains the position. (Paragraph 222)

Publicly and privately-funded functions

34.  We do not have sufficient evidence to come to a conclusion on whether section 43 operates effectively to protect the competitiveness of public bodies when competing for public sector contracts. However, there is a strong public interest in competition between public and private sector bodies being conducted on a level playing field to ensure the best outcome for the taxpayer. With the increasing contracting out of public services we recommend the Government keeps this issue under review, and if public sector bodies are found to be at a disadvantage we expect either that section 43 will be amended or another model found to protect such commercial interests. (Paragraph 231)

35.  We agree with the Information Commissioner that universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act. We make separate recommendations in paragraph 214 to deal with potential problems the Act may create for university research. (Paragraph 232)

Private companies and public funding

36.  The right to access information must not be undermined by the increased use of private providers in delivering public services. The evidence we have received suggests that the use of contractual terms to protect the right to access information is currently working relatively well. We note the indication that some public bodies may be reluctant to take action if a private provider compliant with all other contractual terms fails to honour its obligations in this area. In a rapidly changing commissioning landscape this has the potential fundamentally to undermine the Act. We remind all concerned that the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers' money, and that contracts for private or voluntary sector provision of public services should always contain clear and enforceable obligations which enable the commissioning authority to meet FOI requirements. (Paragraph 239)

37.  We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities. (Paragraph 240)

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Prepared 26 July 2012