FOI Man scouts out the battle lines ahead of a major battle for the future of FOI.
The week before Christmas the Justice Select Committee called for evidence for its post-legislative scrutiny of the Freedom of Information Act. At the same time, the Ministry of Justice’s memorandum to the committee was published – all 133 pages of it – that will inform the inquiry. I’m sure you all had better things to do over the last few weeks, so I’ve read it for you. (The BBC’s Martin Rosenbaum also blogged about this memorandum just before Christmas, but hopefully the below fleshes out some of his observations at the time).
The memorandum is very important for the future of FOI. I’ve said before that 2012 will be a very important year for the legislation. It’s probably not an overstatement to say that the next few months will decide the future of FOI. And this post-legislative scrutiny will be the key battleground.
There have already been hints as to the direction that the Government would like to take FOI, but the memorandum fleshes these out. We now know what the Government considers the committee should be focussing on. I’m going to summarise these below, and will follow up with more detailed comment on some key aspects over the next couple of weeks.
- Scope of the Act – the MoJ wants the committee to look at who is covered by the Act, and is concerned that this isn’t always clear; it also seems uncomfortable with the complexity involved in adding new bodies.
- Vexatious requests – MoJ notes that section 14 of the Act isn’t regularly used by public authorities, and worries that this may be due to the lack of definition of ‘vexatious’.
- Exemptions – although the general view (largely based on a survey of practitioners) is that they provide appropriate levels of protection, it may not be a surprise (given recent comments from the departing head of the Civil Service) to hear that there are concerns in government about protecting the convention of Cabinet confidentiality.
- Big – and accelerating – rises in the volume of requests being received; MoJ can’t understand why use of exemptions to withhold information is rising in central government but declining in local government (answers on a postcard, please).
- Delays in considering the public interest and internal reviews should be examined; but MoJ are pretty satisfied with the timeliness of responses to requests in general.
- MoJ think that compliance with the Act is generally good across the public sector, but are already conducting a review with the ICO of the 6 month limitation on bringing s.77 charges.
- Publication schemes could be for the chop; the memorandum says that “technological advances since the enactment of FOIA might have rendered publication schemes somewhat obsolete” (para 170).
- The big issue that comes up time and again in the report and is highlighted in the conclusion is cost limits; this is by far the most likely change that will result from all this discussion. The memorandum suggests lowering the cost limit and/or including reading, consideration and redaction time in the calculation of cost. In other words, we’re back to the Blair government’s proposals of 2006/07. But Tony didn’t have an economic crisis to point to in support of change.
- So much for the principle of applicant and purpose-blind processing of requests – the memorandum highlights concerns over media and commercial use of FOI.
- The committee is also invited to examine claims of a ‘chilling effect’ on policy making – but MoJ says the evidence is ‘mixed’.
Most of the commentary in the memorandum focuses on central and local government – higher education, for instance, isn’t mentioned once as far as I can see – although MoJ claims to have consulted FOI Officers from across the public sector. The results of this survey are summarised in a report annexed to the memorandum, and I’ll be looking at what my fellow FOI Officers told MoJ in my next post. In the meantime, if you want to hear more warlike discussion of 2012 and FOI, do have a read of Tim Turner’s latest blog post – and take heed.