FOIMan welcomes the publication of the FOI Commission’s long-awaited report and the Government’s promise not to make legal changes to the Act.
So the FOI Commission has finally reported. Many were pleasantly surprised to find that its report was well balanced and not the all out attack on FOI that had been predicted.
What’s more, the Government’s initial response suggested that the threat to FOI was over. The Cabinet Minister told the Press that “no legal changes” would be made, which would appear to rule out changes to exemptions, the appeal process and some of the other less welcome recommendations of the Commission.
It’s not clear though whether the threat has gone away completely. The Cabinet Minister, Matt Hancock’s statement in Parliament omitted the “no legal changes” phrase. Even if we do accept his quote at face value, it is not clear whether this reluctance to legislate extends to secondary legislation such as would be needed to amend the cost limit and the factors relevant in its calculation. One of the Commission’s proposals was to remove the First Tier Tribunal from the current appeal process. Mr Hancock’s press statement would again appear to rule this out in the short term. However, a recent consultation on Tribunal fees left open the possibility of charging for access to the Tribunal. Whilst the Commission gave short shrift to universities hoping to be removed from the Act’s coverage, the Department of Business and Innovation has apparently commented that a proposal along these lines in the recent Higher Education Green Paper “wasn’t related to govt review…responses on all proposals are being assessed”. So BIS is making clear that this is still on the table which may give HE critics of FOI hope.
Despite these notes of caution, that the Commission’s report and more importantly, the Government’s response, have turned out more positively than any of us hoped a few months ago is cause for celebration. It is also a victory for the hard work and resilience of Maurice Frankel’s Campaign for FOI which put together a formidable campaign. The fact that tabloid newspapers, Conservative MPs, former Ministers and even a former Head of the Civil Service, were prepared to speak out alongside the usual suspects was a major step forward. And we now have two thorough examinations of FOI – one by a Parliamentary Select Committee, and one by a government Commission – which have concluded that FOI works well. Perhaps it will now be a while before a government proposes another scrutiny of the Act. Let’s hope so.
This isn’t the end though. The Government has promised to make changes to the s45 Code of Practice, and to do more to encourage proactive publication of data. The Commission made some positive noises about extension of the Act, and many would like to now press the government to move in that direction. And there will be implications too of the General Data Protection Regulation – in particular in respect of how requests involving personal data should be handled. So even though the danger to FOI may be much reduced, there are still many developments to watch out for in the coming months and years.
If you’d like to hear more about the FOI Commission, and in particular what it tells us about how the UK Act has evolved, and where it is going, I’ll be speaking about this at Understanding Modern Government’s FOI course on 17 March. A day before that, you can also join me for a special one-off webinar on the Commission and the future of FOI for Act Now Training. Please do join me for one or both of these events.