Thursday 04 October 2012 by Ibrahim Hasan
The past few months have seen a number of developments in Freedom of Information law.
In May, the Information Commissioner's Office (ICO) announced changes that will be made to the information public authorities will need to release proactively as part of their Publication Scheme (under section 19 of the Freedom of Information Act 2000 (FoI)). The main driver for the changes is the dataset provisions in section 102 of Protection of Freedoms Act 2012. This amends section 11 of FOI so that, once the provisions come into force:
The ICO will review and update all sector definition documents, which will outline the information authorities in different sectors should release, updating current requirements and existing guidelines to comply with the amendments to Publication Schemes and reusable data contained in the 2012 act, as well as contributing to the wider open data initiative across the public sector. A revised Model Publication Scheme will then be introduced on 1 April 2013, which will apply to all sectors, with the definition document providing sector specific guidance to accompany the main scheme.
The government has not yet announced when the dataset provisions will come into force. However, public authorities need to identify now what datasets they hold and how they will deal with requests for disclosure and reuse of the same.
Constitutional Reform and Governance Act 2010
In July justice minister Lord McNally announced further details of the commencement of the Constitutional Reform and Governance Act 2010, which was passed by Labour but never brought into force. A phased approach will be adopted.
Among other things, this will reduce, from 30 to 20 years, the point at which historical records are made available at the National Archives and other places of deposit. Consequently, the maximum lifespan of a number of FoI exemptions will be reduced. From 1 January 2014 the maximum duration of the following exemptions will reduce by one year per annum over a 10-year period: sections 30 (investigations and proceedings conducted by public authorities); 32 (court records); 33 (audit functions); 35 (formulation and development of government policy); 36 (prejudice to effective conduct of public affairs), except in relation to Northern Ireland and the work of the Executive Committee of the Northern Ireland Assembly; and 42 (legal professional privilege).
Earlier this year the Justice Select Committee, chaired by Sir Alan Beith, undertook post-legislative scrutiny of FoI. It heard evidence from various interested parties on how the act was working and whether any changes needed to be made to it.
In July, the committee published its report (twurl.nl/6ck4tc). The 100 pages are broadly summarised in the first sentence: 'Freedom of Information has been a significant enhancement of our democracy and the act is working well.' The committee resisted calls for a major shake-up of FoI, though it has commented fairly extensively on how the act should be applied in practice.
In May (tinyurl.com/cbtl6sq) I predicted, based on the strong submissions made by various parties to the committee, that some changes were likely to be recommended. Among other things, I suggested that the committee would recommend new exemptions for frivolous requests exemption as well for Cabinet minutes. These have not made it into the final report but other (more modest) changes have been recommended:
1. A Change to the Costs regime
Many public authorities who responded to the committee's call for evidence expressed concern about the sheer cost of dealing with FoI requests (although the basis of calculation of some of the figures seemed highly dubious). There was even a suggestion that different fees be introduced for different types of requestor eg to differentiate between private individuals and the media. This did not find favour with the committee but it does recommend that consideration be given to reducing the amount of time a public authority has to take in searching for and compiling information before it can refuse on cost grounds. At present this limit is 24 hours for central government and 18 hours for others.
Paragraph 61 of the report states: '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.'
However, the committee also rejected the suggestion that reading and consideration time should also be able to be taken into account when deciding whether the 18-hour limit has been reached.
2. New Research Exemption
Universities strongly argued at the oral evidence stage that there was insufficient protection for pre-publication research under FoI. The committee took this on board and has recommended that the exemption in section 22 of the act (information held with a view to publication) should be amended to give academic research carried out in England, Wales and Northern Ireland the same protection as in Scotland (under the Freedom of Information (Scotland) Act 2002).
3. New statutory time limits
The committee recommends that statutory limits for undertaking internal reviews and for applying the public interest test be introduced to avoid delays in dealing with requests. At present where a public authority wishes to extend the 20 working-day time-limit to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit (although the information commissioner recommends that a further 20 working days is appropriate in most cases).
The committee recommends that this 20-day extension is put on a statutory footing. A further extension should only be permitted when a third party external to the organisation responding to the request has to be consulted. It also recommends that a time limit for internal reviews should also be put into statute. The time limit should be 20 days with an additional 20 days for exceptionally complex or voluminous requests.
4. Disclosure logs and names of requestors
Surprisingly, the report recommends that where the information released from FoI requests is published in a disclosure log, the name of the requestor should be published alongside it. At present, this would run the risk of unfair disclosure of personal data and so breach the Data Protection Act 1998. It will be interesting to see how, if at all, this is given legislative effect.
5. Section 77 Prosecutions
The committee also recommends a change to the provisions of the act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the information commissioner to bring a prosecution within six months of the offence taking place. As often the commissioner would not find out about an offence until well after this time, the chances of bringing a prosecution are very low.
The report states: '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 remo
ve 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 £5,000 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.'
6. Publishing Response Data
At paragraph 109, the committee recommends that all public bodies subject to the act should be required to publish data on the timeliness of their response to FoI requests. This should include data on extensions and time taken to conduct internal reviews. The committee says this will not only inform the wider public of the authority's compliance with its duties under the act but will also allow the information commissioner to monitor those organisations with the lowest rate of compliance.
The report will now be considered by the Ministry of Justice, before a final decision on any changes to the act is made by the Cabinet.
Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk)