Tag Archive for Amendments

Brexit amendment to FOIA

FOIMan highlights a new amendment to FOIA resulting from the UK’s planned departure from the European Union.

It’s all getting real isn’t it? Aside from all the shenanigans in the Conservative Party this week, we’re seeing more and more of the practical application of Brexit from government. And the Freedom of Information Act (FOIA) isn’t immune from this.

Under the European Union Withdrawal Act 2018, ministers can make amendments to legislation to ensure that it is compatible with the terms of Brexit using secondary legislation. Yesterday the government outlined changes that would be made using this mechanism to the Data Protection Act 2018 (and through that, the application of GDPR in the UK) if the UK leaves the EU with no deal. (The Information Commissioner has also issued guidance on how no deal will affect data protection, especially when it comes to international transfers of personal data.)

In truth, FOIA isn’t massively affected by Brexit. But it has been necessary for the government to lay regulations making one very specific amendment. Section 44 of FOIA provides an absolute exemption from the duty to provide information or confirm its existence in circumstances where other laws prevent disclosure. It avoids a conflict between FOIA and other laws. Specifically, s.44(1)(b) of FOIA specifies that information will be exempt from disclosure if it:

is incompatible with any EU obligation

Yesterday the Cabinet Office laid regulations before Parliament which simply replace the reference to ‘any EU obligation’ with ‘any retained EU obligation’.

And there we are – FOIA is ready for Brexit when (or if) it comes.


The Freedom of Information Officer's Handbook, Facet PublishingA reference guide to the FOIA exemptions is provided in the Freedom of Information Officer’s Handbook by Paul Gibbons, which will be published in January 2019. Readers and subscribers to this blog can pre-order copies direct from the publisher with a 30% discount (so it will only cost you £45.45) by emailing info(Replace this parenthesis with the @ sign)facetpublishing.co.uk and quoting the code FOIBLOG30 (do not supply payment card or bank account details by email). The publisher’s distributor will then contact you to arrange payment and discuss despatch instructions.

No FOI in Queen’s Speech?

FOI Man argues that the absence of FOI from the Queen’s Speech does not mean that the Government has abandoned plans to amend FOI significantly, and explains what the process of making the proposed amendments would involve.

Last month some commentators expressed surprise that there was no reference to FOI in the Queen’s speech. Especially as there had been some talk from Government of making changes to FOI following the post-legislative scrutiny last year.

The Government has stated that it wants to do three things of significance:

  1. reduce the acceptable limit above which FOI requests can be refused
  2. include consideration and possibly reading time amongst the factors that can be included when estimating the cost of answering FOI requests
  3. allow aggregation of the cost of multiple FOI requests from the same person or campaign when considering if requests can be refused on cost grounds.

The Campaign for Freedom of Information has drawn attention to the significance of these proposals, and the potential harm they could do to the right to know. But does the fact that there was no reference to them in the Queen’s Speech mean that the Government has given up on them?

Well, the truth is that the trailed changes wouldn’t require primary legislation. All three of the proposals above could be achieved by amending the FOI fees regulations. Specifically, the first proposal would require an amendment to regulation 3, the second to regulation 4, and the last one to regulation – you guessed it – 5. In the case of the last one, all that would be required would be for the sub-clause which refers to requests being “the same or similar” to be removed. But the effect of that would be dramatic, in that it could potentially stop journalists or even whole media organisations (being legal persons) from making more than one FOI request within a three month period.

So how easy will it be for the Government to make these changes? Well, amending regulations is much easier than amending an Act of Parliament. But depending on the primary legislation affecting them, it can still take some time to achieve any amendment. Some regulations require a vote. That isn’t the case with the fees regulations, which would just be “laid” on the table of both Houses – effectively passed without debate unless someone raises an objection (which given the quantity of secondary legislation that is passed each year rarely happens).

That said, there are still a number of hoops that the Ministry of Justice, as the relevant Government department, would have to leap through to bring these changes into force. Firstly, as the regulations affect the Data Protection Act as well as the Freedom of Information Act, there is a requirement to consult the Information Commissioner on any new regulations.

Generally these sort of changes would also be subject to some sort of wider consultation. In the old days (ie before the current Government) my understanding is that consultation was more or less mandatory for a change in the law of this type, and it would have to go on for at least 13 weeks. The current Government has dispensed with these requirements though their own Consultation Principles still encourage consultation in most circumstances. However, rather worryingly for FOI campaigners is the exception set out in the Principles which suggests that consultation will not be necessary “where adequate consultation has taken place at an earlier stage”. One wonders if a Government keen to push these changes through might argue that the evidence collected during the Justice Select Committee’s post-legislative scrutiny constituted “adequate consultation…at an earlier stage”.

And there would be precedent for a consultation destroying plans of these sort. The new proposals are exactly the same as those made by Tony Blair’s Government in 2006/07 which ended up being dropped following very negative feedback during the consultation period. Also because the incoming Prime Minister, Gordon Brown, did not wish to be associated with plans to emasculate Freedom of Information. He wasn’t all bad, clearly.

The Government has also established new hoops in the form of their attempts to cut down on red tape. In many cases, a new regulation won’t be approved unless the Department concerned has identified two regulations that can be scrapped. I know – stupid idea – but it might just help delay any proposed amendments to the fees regulations.

So, by my reckoning, if the Government wants to amend the fees regulations, it will need to do the following:

  • draft new regulations
  • consult with the Information Commissioner
  • possibly consult with all of us (but there is the possibility that they’ll justify skipping this because of the post-legislative scrutiny)
  • run the gauntlet of their own Regulatory Clearance Process including a write round of Departments and passing the Regulatory Policy Committee.

My understanding is that the shortest timescale for all of this to take place would be about 13 months, a period which no doubt started when the Government responded to the post-legislative scrutiny last November. So unless we keep a beady eye on the Ministry of Justice over this, we might find that we have new regulations in place by the end of the year.

Alternatively, as the Information Commissioner suggested at a recent City University-hosted event, perhaps they’ll put this on the back burner given that we’re less than 2 years out from the General Election and this might upset the few journalists that are still talking to them after Leveson.

For the time being, who knows? So watch this space as just because the Queen didn’t mention FOI in her shopping list this year, it doesn’t mean that there couldn’t be significant changes just around the corner.

Game, Dataset and Match

FOI Man highlights forthcoming changes to FOI and provides some hints and tips for public authorities on how to deal with them.

Last year, the Protection of Freedoms Act was passed. Amongst the changes it brought in, were a small number of amendments to the Freedom of Information Act.

But we’re still waiting for most, if not all, of those changes to come into force. To bring them into force, the Government has to lay a commencement order before Parliament…and this is yet to happen. It was expected that the commencement order would be laid last month, bringing the changes into force on 1 April. But this has now been delayed, as reported by the Information Commissioner’s Office earlier this month.

The most significant change is the requirement on public authorities to release datasets in a reusable format, and to publish disclosed datasets in their publication schemes. In my latest article for PDP’s Freedom of Information Journal, I’ve written about these requirements and how to comply with them. (And don’t forget also my report on open data work at Southampton University, which contains further tips on managing and publishing open data).

Personally, I don’t think public authorities should worry too much about these changes. There are a few reasons for this. Firstly, as I commented when the Bill was first published, the effect of these changes will be very limited in my view – they change very little. Public authorities already have to provide information in the format requested “so far as reasonably practicable”; I’ve never been convinced by Francis Maude’s claims that public authorities routinely (and deliberately) choose to disclose data in pdf just to frustrate entrepreneurs.

There may be a mad rush of requests for datasets later this summer (if indeed the Government sticks to its latest timetable), and no doubt there will be more impact for some than others. But I don’t anticipate that this is going to cause significant issues overall.

What can public authorities do to prepare? Well, I suggest the following:

  • identify your key datasets – if you regularly get requests for particular data, then you know what is likely to be asked for in future
  • work out what kind of licence you want to apply to these datasets if you disclose them; the easiest thing will be to use the Open Government Licence for information your authority owns the copyright for, but it is likely you will also be able to offer a non-commercial licence (limiting re-use to non-commercial use) or a charged licence (allowing re-use in exchange for a fee)
  • set up a section in your publication scheme for datasets and if you are happy to disclose datasets and make them available for re-use, get them up there on your website for people to use – don’t wait for the requests
  • once you’ve released a dataset and have licensed re-use, you are obliged to make it available in your publication scheme and to keep it up to date.

That last point may sound worryingly like a potentially unmanageable task for some public authorities, but the relevant amendment goes on to say “unless the authority is satisfied that it is not appropriate for the dataset to be published”. “Not appropriate” isn’t defined (as ever), but if it would be expensive to keep the dataset up to date, for instance, that might well be a justifiable reason not to do so.

So the usual advice applies to these changes – don’t panic! But we’ll have to wait and see what the actual impact will be. And indeed when that impact will be felt. At the moment we only have a draft Code of Practice to go on, so hopefully these few thoughts will be useful.



Could Wikeley make FOI changes less likely?

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

  • reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
  • allowing public authorities to include consideration time in the assessment of this limit;
  • allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
  • charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

Debate on future of FOI

FOI Man comments on this week’s Westminster Hall debate on the future of FOI

This week there was a debate on the future of FOI following the post-legislative scrutiny. I have to admit that until it was already upon us, I had been unaware that it was happening. But I clearly wasn’t alone. Four MPs turned up, one of whom was Sir Alan Beith, who chaired the post-legislative scrutiny process, and another of which was the Minister responding for the Government, Helen Grant. So not really a debate so much as a friendly chat over coffee. Hopefully this is not a reflection of the worth MPs attach to FOI. (After all, the FOI debate was being run against a debate on another hot topic on everyone’s minds, reducing the voting age to 16…)

The Minister reiterated Government plans, set out in December in its response to the post-legislative scrutiny, to look at including more activities within the “acceptable limit” that can be used to refuse FOI requests on grounds of cost. She also referred to possible plans to limit “industrial” scale request making. Sir Alan was rightly critical of these proposals. Others have written about the potential impact of these changes, and you can read what the Save FOI Campaign thinks about it on their website.

We’re in the period of the phony war at the moment. The Government is preparing proposals, but we don’t yet know what the detail will be. Any firm proposal will need to be consulted upon before being enacted through amendments to regulations, so we’re a way off any change to the limits on FOI requests yet. This probably explains the low attendance at the Westminster Hall debate, but there’s still some fighting to do to save FOI from potentially damaging reform.