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1 March 2016updated 27 Jul 2021 6:34am

Don’t speak too soon – the Freedom of Information fight is not over yet

Ministers have ruled out sweeping changes to the Freedom of Information Act, but campaigners still have concerns.

By Anoosh Chakelian

There will be no wholesale changes to the Freedom of Information (FOI) Act, following a report published by an independent commission looking into the legislation.

The government was concerned that “sensitive information” was inadequately protected by the Act. This led to a review by the commission, set up in June last year, which journalists and campaigners for transparency feared would obstruct our ability to hold public institutions to account.

However, the FOI commission has issued a report surprisingly sympathetic to the cause for government openness. It even includes proposals for further transparency. For example, recommending that local authorities provide full details of the pay and perks of staff earning £150,000 or over. And its proposal for tighter time limits on public bodies supplying information would also be positive for FOI requesters.

The government has decided not to make any wholesale changes to the Act, apparently ruling out pro-FOI campaigners’ two main fears: charging for FOI requests, and giving ministers more powers to veto disclosures.

Statutory legislation would be required to make such interventions, and the Cabinet Office appears to have ruled out legal changes to the Act. The Cabinet Office Minister Matthew Hancock has also explicitly stated that the government will not legislate to shore up the ministerial veto.

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So everything’s going to be fine, right?

Not exactly. Campaigners remain concerned about parts of the commission’s report and the Act in general.

Martin Rosenbaum, an FOI specialist and BBC journalist, tells me that “we don’t know for sure how the government’s going to react to all the recommendations”.

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The main concern for the Act here, Rosenbaum observes, is whether we take at face value the government’s statement that it won’t make legal changes. Its assurance that it won’t be making legal changes, quoted widely in the press, goes markedly further than the official statement on the government website.

We don’t know specifically that the government won’t act on the commission’s recommendation to stop FOI cases appealing to a first-tier tribunal (this is the first court to which a case is taken if the Information Commissioner’s ruling is unsatisfactory).

“I think if they did stop FOI cases going to the lower-tier tribunal [first-tier tribunal], that would have quite serious implications in a number of cases,” says Rosenbaum.

“Certainly from my own experience, I’ve taken cases where I’ve been dissatisfied with the [Information] Commissioner, I’ve appealed them to the tribunal and got a different decision from the tribunal. And from my own point of view, that’s been a very valuable ability – the ability to appeal from the Commissioner to the tribunal. So if that goes, a lot of requesters will be worried about that.”

It’s not yet clear that the government has ruled out scrapping this tribunal stage.

Another concern for campaigners is government reticence to make private sector companies with public contracts FOI-able. The Campaign for Freedom of Information director Maurice Frankel tells me, “What we would like to see is some of the Act extended, so that it does, for example, apply more effectively to contractors who are not properly covered under the legislation at the moment. The Act made provision for that, but successive governments have not been prepared to go down that route.”

Frankel also warns that the National Crime Agency is “outside the scope” of the Act, and is “now treated in the same way as MI5 and MI6”. This is in spite of it having some border responsibilities previously held by the Border Agency, which was fully subject to the FOI Act, and some policing functions, when the police force is also subject to the Act.

Lastly, although the government will not strengthen the ministerial veto, it will now only veto FOI requests after the stage when a decision has been made by the Information Commissioner. This is to avoid the executive being overruled by the judiciary, as happened when judges agreed to the release of Prince Charles’ “black spider” memos against the government’s wishes.

The fact that there is any veto at all has long been a complaint of some pro-FOI campaigners. The veto has been used seven times since the FOI Act came into force in 2005, including on legal talks in the build-up to the Iraq invasion, cabinet meeting minutes from 1997-98 on devolution, NHS risk registers, and HS2. It is only supposed to be used in exceptional circumstances” and following a collective decision of the cabinet”, but this is less than reassuring to campaigners otherwise relieved by the commission’s report and ensuing government statement this week.