Changes we would like made to FOI law

Freedom of Information Act 2000

see also: our proposed Freedom of Information (Improvement) Bill.

Time limits for internal reviews

At present there is no fixed time limit in law for carrying out internal reviews. The current time limit for responding to requests for information is twenty working days we suggest that the time limit for internal reviews is also set at twenty working days.

This is already the case under the Freedom of Information (Scotland) Act 2002.[1]

Time limits for public interest tests

At present there is no fixed time limit in law for carrying out public interest tests. This means that in practice a public authority must respond in full to an FOI request within twenty days except where a public interest test is being considered in which case there is no fixed time limit for responding to the request.

We suggest the time limit for dealing with FOI requests including considering the public interest test is set at twenty days - this is already the case under the Freedom of Information Act (Scotland) 2002.

Add more public authorities

There are many bodies with substantial public responsibilities which are not currently subject to the FOIA. We would like to see serious consideration given to adding those which appear to have been omitted.

This involves both closing loopholes in the FOIA (eg. bodies wholly owned by two or more authorities which themselves are subject to the act being exempt) and adding specific new bodies to the list of those covered in schedule 1 of the FOIA.

Remove the ministerial veto

Take away right of ministers to overrule the independent Information Commissioner.

Requirement to run disclosure logs

Central Government departments, Local Councils (above Town/Parish Council level), the police and other major public bodies should be required to run comprehensive disclosure logs and place all FOI requests and responses on them.

Requirement to collect FOI statistics

The Ministry of Justice encourages local authorities to collect & publish their performace statistics on handling "non-routine" requests for information under the Freedom of Information Act and Environmental Information Regulations. All major public bodies could be required to do this; it may be something which easily goes hand in hand with a requirement to run disclosure logs.

Right to Data

The cost limit should be raised for requests for "data".

Requests for Timely Proactive Publication

It should be possible to make a request for regular timely proactive publication of data in a particular format; or for "live" access to the data held by public bodies.

Make FOI disclosure decisions non-political

Currently FOI disclosure decisions can involve ministers, or Councillors and other elected officials in local government.

A decision on if particular information is covered by an exemption or not is a technical, legal question and not a political one.

There are two elements to this:

Ministerial (or Councillor) involvement in the initial response to an FOI request. [2]
S.53 of the FOIA which allows ministers issue a certificate providing an exception from duty to comply with decision notice or enforcement notice.

The first of those is what needs addressing.

Public sector contracts

Alter the exemptions in s41 and s43 of the Freedom of Information Act 2000 so these cannot be used as a reason not to disclose public contracts. These exemptions relate to:

s41 information provided in confidence
s43 commercial interests

There is a clear public interest in opening up public sector contracts to public scrutiny and so these should be released unless there is a really good reason not to provide them such as National Security.

Harm test

Information should be withheld only where there is a good reason not just any reason.

Under the UK Act a public body can use an exemption to withhold information if they can demonstrate "prejudice" to a specified interest. Under the Freedom of Information (Scotland) Act 2002 the public authority must show that disclosure would "substantially prejudice" a specified interest. [3]

We would suggest that the UK Act should require public bodies to demonstrate 'substantial prejudice' before using an exemption to withhold information.

Clear statement of principle

The Act should contain a clear unequivocal statement that its purpose is to encourage the disclosure of information, for example the Canadian Access to Information Act states:

“The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.”

This will help ensure that public authorities, the ICO and the Courts interpreted the Act in such a way as to create a strong presumption in favour of disclosure. (see also: The Freedom of Information Act 2000: Genuine or Sham?, Tom Cornford, 2001)

Requests for Documents

The ICO has made clear in decision notices that requested documents have to be released under the FOIA. In the interests of simplicity and transparency it might be worth incorporating this, and other, "ICO made law" back into the FOIA.

Intended for future publication

We would stop the "intended for future publication" (S.22 exemption to information not scheduled for publication within a specified period, eg. 90 days, of the date of the request.

We would suggest that public authorities have to demonstrate there existed prior to receipt of the request a committed plan in place to publish in order to rely on the exemption.

Prejudice to public affairs

The test should be objective (based on fact) and not based on opinion.

Destruction of information that has been requested under FOI

Under the Freedom of Information (Scotland) Act 2002:

"section (s.1(5)) prevents destruction of documents unless “not reasonably practicable”. Clear from Justice Minister's comments that relates to info “already on a lorry... trundling towards the incinerator”. (Stage 3 debate)."[4]:

We suggest that a similar clause is added to the Freedom of Information Act 2000 which does not offer strong safeguards against requested documents being destroyed. The difference is mainly relevant in cases where a document has been requested and after the request is made a public official decides to destroy the document in line with the public body's document retention policy.

Statutory prohibitions on releasing information

S.44 of the FOIA provides an exemption from release of any information disclosure of which would be contrary to any other piece of legislation.

We suggest:

Amending this exemption by requiring the public authority carry out a public interest test when invoking it. The public interest test could be required to take into account the spirit and rationale of the reasons for prohibition of disclosure by the original acts.
Ministers should use their existing powers under S75 of the FOIA to review and repeal unnecessary restrictions on information publication as part of their wider efforts to increase transparency and openness in Government
Expanding the "Impact Assessment" process to include an assessment of the impact of any new law on Freedom of Information. The assessment should robustly justify any additional restrictions on freedom of information introduced by new legislation.
Amending the terms of reference for the various parliamentary committees on scrutiny of secondary legislation so that they are able to draw MP's attention to any FOI restrictions Ministers are seeking to introduce.

Note: The S.44 exemption has some value in that it ought allow ministers the ability to be bold in adding new bodies such as coroners to the FOIA without fear that this would result in inappropriate disclosures of information being required.

Dissolution of Parliament

In the UK Parliament is dissolved prior to a General Election. The public officials working in the Palace of Westminster during the 2010 General Election argued that the House of Commons does not legally exist during dissolution and so there was no legal requirement to respond to requests for information during dissolution. It is unacceptable that a time of heightened public interest in politics that public officials are not answering FOI requests.

By adding the following bodies to the list of public authorities covered by the Freedom of Information Act 2000 (in schedule 1 of the Act) we can avoid a repeat of the problems experienced during the 2010 General Election:

Corporate Officer of the House of Commons (established by the Parliamentary Corporate Bodies Act 1992)
Corporate Officer of the House of Lords (established by the Parliamentary Corporate Bodies Act 1992)
House of Commons Commission (established by the House of Commons (Administration) Act 1978)

Information Commissioner

While the situation appears to be improving at the moment, delays in appeals to the ICO have reduced the effectiveness of the FOIA. Properly resourcing, and properly prioritising the work of the ICO has been effective to some degree at rectifying historical problems. A new provision to require the commissioner to write a public letter to the minister explaining why any complaint which becomes six months old has been delayed and giving an expected date of resolution might well assist expiating the process. Regular(bimonthly?) public updates on delayed complaints would improve transparency.

Action following ICO decision notice ordering disclosure

The information released following a decision notice should be proactivly published either on the public body's website, or on the ICO website.

Means by which communication to be made

S.11 of the FOIA ought be amended to make clear that if a request is made by email then the assumption should be that the requestor is seeking an electronic response.

Provision could be made here to require that the means by which information is disclosed ought be chosen with consideration given to making the use of the information released as easy as possible.

ie. A plain text CSV file ought be released rather than an image of a spreadsheet a PDF which you can copy and paste out of should be used in preference to a password protected document.

Publication of an email address

Bodies subject to the FOIA should be required to publish a functioning email contact address.

There is little point adding a body like ACPO if its published email addresses don't work [5]

Personal Information Exemption

This has been interpreted very broadly by many public bodies.

There may be opportunites to incorporate "caselaw" from ICO decision notices, and information tribunal rulings into the act. FOIA_Section_40_Exemption

Section 21: Information Accessible By Other Means

The only protection from abuse of this provision, which exempts information even if the alternative route to obtain it involves a charge, is that the information must be "reasonably accessible". There is no provision ensuring any charge is "reasonable".

British Broadcasting Corporation

Schedule One of the FOI Act makes the British Broadcasting Corporation only subject to the FOI act "in respect of information held for purposes other than those of journalism, art or literature."

In practice the BBC have very broadly interpreted the definition of "journalism, art or literature" this could be tightened up so that not all information even loosely connected to those areas is considered beyond the reach of the act. We agree with the what appears to be the basic intent of the law and information directly related to journalism ought be exempt.

Royal Household FOIA exemption

S.37 of the FOIA exempts information relating to communications with The Queen and other members of the Royal Household. This means as it stands it is not possible to obtain information on how the royals are, or are attempting to, influence government.

[6]

On a related point, the Duchy of Cornwall is one of the bodies we would like to see made subject to the FOIA [7]

Qualified Persons S.36(5)

Where S.36(5) is invoked the name of the qualified person making the decision to exempt the information, and their reasons, ought be disclosed in the decision notice.

Explicit right to photocopies of original documents

Section 11 of the Freeom of Information Act 2000 should be extended to allow applicants to specify that they would like to be supplied with photocopies of original documents containing requested information.

Inappropriate Entities Subject to the Act

Universities

Pre-1992 universities are mostly corporations created by royal charter or by Act of Parliament. Despite this, FOIA applies not to the universities but to their "governing bodies", a term which usually refers to the committee that runs the university. In practice, this doesn't seem to be used by universities to avoid responding to requests, but it quite easily could. Chartered and ancient universities (and their colleges) should be subject to the Act themselves, just as higher education corporations are.

Police Forces

A similar problem exists with police forces it is "A chief officer of police of a police force in England or Wales" who is subject to the act, not the force itself. Despite this though a request for a document held by a Chief Officer (but not the police force) has been rejected.[8]

Houses of Parliament

As the House of Commons and House of Lords themselves cease to exist from time to time (during dissolutions), it may make more sense to make an entity with continuity of existence formally subject to the Act, for example the House of Commons Commission.

Publication Schemes

The ICOs model publication scheme already contains a commitment to proactive publication.

This could be incorporated into the FOIA, schedules could specify types of information certain bodies must proactively publish.

Libel reform

The law should be changed to make it explicitly clear that circulating or publishing the response to an FOI request attracts 'qualified privilege'. The practical implication of this would be that it would be very difficult to take someone to court for circulating/publishing the response to an FOI request where this was not done maliciously.

There is currently a Defamation Bill before Parliament.

'Laughing stock' libel laws to be reformed, says Nick Clegg (6 January 2011, Guardian)
Key Findings 10 Changes proposed by National Campaign for Libel Reform

Reform of copyright law

In general, a work prepared by an officer or employee of the US government as part of that person's official duties is not protected by domestic copyright law. We would like to see the law changed so that UK Government documents are also in the public domain. This would make it easier to reuse and republish information received from FOI requests.

As an interim step, we would welcome the reduction in the term of Crown Copyright from 50 years to 10 years.

What we don't want to see

Any fee for those making requests.