FOI Man greets the Justice Select Committee’s Post-Legislative Scrutiny report with some relief.
This week is a very exciting time for everyone in the UK. It’s finally here, after 7 years, and months of wrangling and concerns over cost. Yes, today the Justice Select Committee has published its report on its post-legislative scrutiny of the FOI Act.
And my first reaction is that I’m relieved. The Committee has rejected the most damaging proposals, and reaffirmed the importance of FOI in enhancing our democracy. They reject charging for FOI requests. They say no to the Lord GO’D’s proposal to give absolute protection to Cabinet papers. They say there is no need for the 20 working day time limit to be extended as ACPO had requested.
What’s more, they’ve recommended some significant tightening up of the Act. Statutory limits of 20 working days for handling internal reviews should be introduced. Extensions to consider the public interest should be similarly restricted (with longer allowed for consultation with third parties). To improve compliance with existing deadlines, the Committee lifts one of my own recommendations – that public bodies should be required to publish data on their compliance with deadlines. They agree with my argument that such publication would allow the public – and the Commissioner – to better scrutinise and compare the performance of public bodies.
One aspect of the Act that has been widely criticised is the treatment of the offence set out at section 77 of the Act of destroying or unlawfully withholding information that has been requested. The MPs agree with the Information Commissioner that this should be made an “either way offence” so that the currently risible time limit for investigation of 6 months would be scrapped. They go further in recommending that the maximum fine for this offence should be increased beyond the existing £5,000 to “send a clear message to public bodies and individuals contemplating criminal action”.
In evidence, I made the point that FOI can only really be effective with senior leadership. I criticised high profile figures who have publicly attacked the Act. The Committee responded to this, and calls for “leadership and focus” by senior officials. It is also, it should be noted, very critical of former Prime Minister Tony Blair and his attitude to their inquiry. He, of course, is the most high profile critic of this legislation – which his own government introduced.
The Committee has largely taken the approach that I have promoted here of “education not legislation” to improve FOI. Controversially perhaps, they have recommended that the cost of handling individual requests should be included in responses, and – rather oddly, I think – that the names of requesters should be included in disclosure logs. The Committee are also supportive of my proposal to introduce a Code of Practice for requesters.
Universities were represented disproportionately in the evidence given by public bodies, and they were handed a dedicated oral hearing. As an FOI Officer in higher education myself, it is with some relief that I greet the Committee’s statement that:
“…universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act.”
However, the call of Universities UK and others to amend section 22 of the Act (the exemption for information planned for future publication) to incorporate a Scottish-style research pre-publication exemption did attract the Committee’s sympathies. My views on this have been set out before, but whilst I’m sceptical of the need for such an exemption, I can’t really see much harm resulting from it.
Universities, NHS bodies and others had expressed concern that FOI prevented them from operating on a level playing field with the private sector as the Government increasingly places an emphasis on competition. The Committee hasn’t reached any conclusion on this point, but urges the Government to keep it under review. There is the possibility at some point of an amendment to section 43 of the Act to address this.
The Committee looked at whether private companies should be subject to FOI. They concluded that the use of contractual terms to protect the right of access to information where services had been outsourced seemed to work well, so there is no recommendation to expand FOI in this way.
There is very little in the report that would cause any significant weakening of the Act. We should watch the Government carefully when it responds to the Committee’s suggestion that the “acceptable limit” be reviewed and possibly reduced from the 18 hours of staff time currently allowed to 16 hours. My own feeling is that this would not hugely reduce the number of requests that could be answered, but much depends on the way that the Government chooses to amend the relevant regulations, as the Campaign for FOI has already pointed out.
Many FOI supporters will be a little concerned at the Committee’s comments on the veto. They have chosen to support the veto in principle as a way to counter arguments about “the chilling effect”. Effectively they are saying that civil servants and Ministers need not fear that discussions around policy formulation will be disclosed as they can be protected by the veto if necessary. Some might interpret their conclusions as encouraging a wider use of the veto in future. This, in my view, would be unwelcome and a step backwards.
Overall, the Justice Committee has found that FOI has achieved its principal objectives, and has recognised that the benefits it brings – whilst often not quantifiable – outweigh its costs. Now we must wait and see how the Government will respond to this report. But fundamentally, what’s important now is that public bodies accept that FOI is here to stay.
The SaveFOI Campaign have also commented on the report.