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Published 9 March 2016
The FOIA Commission published its report into the FOIA on 1 March 2016, including 21 recommendations for improving the Freedom of Information Act.
The government has yet to respond in full but has given its views on the key recommendations. The recommendations and government response are summarised below, with the recommendations most likely to have a significant impact on our clients in bold. Perhaps more interesting are the formal recommendations that have not been made.
There is no recommendation to lower the cost of compliance limit or to widen the use of fees.
The Commission also concluded that extending FOIA to private companies delivering outsourced public services would be "burdensome and unnecessary." However, there is a suggestion (short of a formal recommendation) that performance and delivery information about outsourced public services held by private companies delivering more than £5m of public services public per year should be caught by FOIA.
There has been some discussion, post the Kids Company debacle that charities should be subject to FOIA. The Commission has concluded that charities should be treated in the same way as other contractors.
The Freedom of Information (Public Interest and Transparency) Bill 2015-16 is currently making its way through Parliament. The Bill touches on some of the issues detailed in the report, such as time limits for considering the public interest test (recommendation 1) and vetoes (recommendations 13-16). Subject to the government's detailed response to the report, it may well be that we see some amendments to the Bill, and in turn, some legislative changes sooner than anticipated.
Abolish the public interest test extension to the time limit, and replace it instead with a time limit extension for requests where the public authority reasonably believes that it will be impracticable to respond to the request on time because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information. This time limit extension will be limited to an additional 20 working days only.
The government has not yet responded to this recommendation.
Impose a statutory time limit for internal reviews of 20 working days.
Impose a requirement on all public authorities who are subject to FOIA and employ 100 or more full-time equivalent employees to publish statistics on FOIA compliance.
The government has confirmed it will revise the code of practice to set a standard that those public authorities with 100 full-time equivalent employees, or more should publish compliance statistics in relation to their duties under FOIA.
Impose a requirement on all public authorities who are subject to FOIA and employ 100 or more full-time equivalent employees to publish all requests and responses where they provide information to a requestor. This should be done as soon as the information is given out wherever practicable.
Public bodies should be required to publish in their annual statement of accounts a breakdown of the benefits in kind and expenses of senior employees by reference to clear categories.
Consideration will be given to what additional steps should be taken to address gaps in information published by authorities, particularly in relation to expenses and benefits in kind.
The government should give the Information Commissioner ("the IC") responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations (including the duty to have a publication scheme under the FOIA).
Replace section 35(1)(a) (which can only be applied by government departments) with an exemption which will protect information which would disclose internal communications that relate to government policy.
Expand section 35(1)(b) so that, as well as protecting inter-ministerial communications, it protects any information that relates to collective Cabinet decision-making, and repeal section 36(2)(a).
Amend section 35 to make clear that, in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter.
Amend section 35 to make clear that, in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.
Amend section 36 to remove the requirement for the reasonable opinion of a qualified person.
Amend FOIA to put beyond doubt that the government has the power to exercise a veto over the release of information under the Act.
The government agrees that Parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an IC decision. On that basis the government will not bring forward legislation at this stage.
Make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure.
Ensure that the executive veto is available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure.
Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court.
Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.
The government has not yet responded to this recommendation. However, it has confirmed that it will only deploy the veto after an IC decision.
The government should legislate to allow the veto to confirm a decision of the IC where the IC upholds a decision of a pubic authority on the public interest in release.
This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.
Remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act.
Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and first-tier Tribunal, but is limited to a point of law.
Clarify section 11(1)(a) and (c) of the Act so that it is clear that requestors can request information, or a digest or summary of information, be provided in a hard copy printed form, an electronic form, or orally.
Where a requestor specifies a specific electronic document format, that request should be granted if the public authority already holds the information in that format, or if it can readily convert it into that format. Where the information requested is a dataset, the requirements at section 11(1A) will apply.
The legislation should make clear that the obligations on public authorities to provide information in a particular format extend no further than this.
The government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate.
The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.
The government agrees with the recommendation to review the operation of section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the code of practice is sufficient and up to date.
The government provides guidance, in a revised Code of Practice issued under section 45, encouraging public authorities to use the vexatious request exemption (section 14(1)) in appropriate cases.
The government agrees that a revised code of practice should be issued to allow public authorities to use section 14(1) in the rare cases where it is necessary and appropriate. It recognises that access to information rights should not be abused to cause distress or a means of harassment, nor should the ‘vexatious’ designation be an excuse to save public officials embarrassment from poor decisions or inappropriate spending of taxpayers’ money.
The government reviews whether the amount of funding provided to the IC for delivering his functions under the Act is adequate, taking into account the recommendations in this report and the wider circumstances.
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