Laws restricting disclosure of information

Introduction

Section 44 of the Freedom of Information Act exempts information from disclosure if other legislation would prevent its release. Unlike many of the other exemptions in the FOI act, S.44 can be applied even where there is an overriding public interest in making information available.

The Information Commissioner's log of appeal determinations shows numerous areas where this exemption is being used to refuse to release information. These decision notices also identify some of the specific laws which are overriding and restricting the scope of the Freedom of Information Act.

When the Act came into force it didn't automatically repeal all the other laws which prohibit public bodies from releasing information. However, power was given to ministers to directly repeal any laws preventing the operation of the FOI act, without needing to ask Parliament's permission. In 2005 a review of Statutory Bars was published:

"This review has identified 210 statutory provisions which prohibit the disclosure of information under section 1 of the Freedom of Information Act 2000. Of these, 27 cannot be amended using the power in section 75 of the Freedom of Information Act. Another 238 provisions, which were identified as potentially operating as bars to disclosure, have been considered and found not to be so."

Over time there should therefore be fewer and fewer areas where FOI can't reach. It has therefore come as a surprise to see that the new coalition government, which has generally taken a strongly pro-transparency stance, has started not by expanding the scope of FOI, but by adding a new area outside its reach.

On the 2nd of June 2010 Theresa Villiers, the Secretary of State for Transport and Rail, laid before Parliament the Rail Passengers’ Rights and Obligations Regulations 2010, which removes a previous UK opt-out from the relevant European Regulation. Railway companies will now have a stronger duty to passengers in the event of delay, missed connections and cancellations. The law also introduces the definition and monitoring of service quality standards, the personal security of passengers, and complaint handling.

However, Regulation 19 prevents rail complaint bodies, such as the Office of Rail Regulation, from releasing information about any complaints against the rail companies, or any enforcement measures taken, without first getting permission from the company in question. There is a hefty maximum £5,000 fine and/or a 2 year prison term for those breaching this regulation. It's worth noting that there is no clause in the underlying European legislation which has prompted this regulation restricting information publication; the restrictions have simply been added by the UK Government. In the grand scheme of things this is a small, and quite possibly accidental, additional restriction on the operation of FOI, but we think it is worth drawing attention to as it is a worrying step in the wrong direction.

The S.44 exemption in the FOI act as resulted in information requested via WhatDoTheyKnow not being disclosed in areas such as tax affairs, local government maladministration complaints, animal experimentation, investigations or regulatory dealings with communications companies or financial firms, investigations into companies, police investigations, product safety and many other fields.

Suggestions for improving the law with respect to the S.44 exemption

• Amend 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
• Expand 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.
• Amend 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.

List of laws

2010

• Energy Act 2010 Schedule 1, paragraph 16 amends the Utilities Act 2000 to restrict publication of information sent to government by energy suppliers relating to schemes helping disadvantaged groups of customers or Fuel Poverty schemes.

16. In section 105 (general restrictions on disclosure of information)—

(a) in subsection (1), after “2004” insert “or Part 2 or section 27 or 28 of the Energy Act 2010”;

(b) in subsection (3)(a), after “2008” insert “, Part 2 or section 28 of the Energy Act 2010”.

• Cluster Munitions (Prohibitions) Act 2010
• Communications Act 2003 (Disclosure of Information) Order 2010 SI 2010/282
• Cross-Border Payments in Euro Regulations 2010 SI 2010/89
• Human Fertilisation and Embryology Act 2008 (Commencement No.3) Order 2010 SI 2010/987
• Passengers’ Council (Non-Railway Functions) Order 2010 SI 2010/439^{({{#formlink:form=Legislation|link text=add|query string=Legislation[Type]=uksi&Legislation[Year]=2010&Legislation[Number]=439}})}
• Rail Passengers’ Rights and Obligations Regulations 2010 SI 2010/1504^{({{#formlink:form=Legislation|link text=add|query string=Legislation[Type]=uksi&Legislation[Year]=2010&Legislation[Number]=1504}})}
• Rail Vehicle Accessibility (Non-Interoperable Rail System) Regulations 2010 SI 2010/432
• Train Driving Licences and Certificates Regulations 2010 SI 2010/724
• Train Driving Licences and Certificates Regulations (Northern Ireland) 2010 SR 2010/132
• Transfer of Tribunal Functions Order 2010 SI 2010/22

2009 and before

• To be added soon
• Section 24 of the Animals (Scientific Procedures) Act 1986 [1]
• Searching www.statutelaw.gov.uk for "Restrictions on disclosure of information" lists many (but not all) of the laws in question.

List of laws that have had restrictions removed or relaxed

• The FOI Act Section 75 allows the Secretary of State to relax or remove these laws that have a s44 prohibition via a Statutory Instrument. There has been one such SI to-date (SI 2004/3363).
• The wording used in most cases was as follows:

"(a) the person making the disclosure referred to in that section is, or is acting on behalf of a person who is, a public authority for the purposes of the Freedom of Information Act 2000, and

(b) the information is not held by the authority on behalf of another person."

• Access to Justice Act 1999, section 20 (but only after 100 years!)
• Audit Commission Act 1998, section 49 (in part)
• Biological Standards Act 1975, section 5 (fully repealed)
• Factories Act 1961, section 154
• Health and Safety At Work Act 1974, section 28 (in part)
• Medicines Act 1968, section 118
• National Health Service Act 1977, schedule 11, paragraph 5
• Offices, Shops and Railway Premises Act 1963, section 59