Revising FOIA?

March 6th, 2009

Tucked away in Jack Straw’s House of Commons statement (24th February 2009) about the veto on disclosure of the Iraq War Cabinet minutes is the following intriguing passage:

Shortly after he became Prime Minister, my right hon. Friend the Prime Minister established a high-level inquiry into the 30-year rule under the chairmanship of Mr. Paul Dacre of the Daily Mail. That report, published last month, proposed a reduction from 30 to 15 years of the time after which Cabinet minutes and other papers would automatically be released. I have already told the House that the Government favour a substantial reduction in the 30-year limit. In that context, the report also recommended that we consider protection under the Act for certain categories of information.

The reference to the Dacre Report relates to the following section in chapter 8 of the Report:

8.7 As we noted in Chapter Five, there are genuine concerns among some ministers and civil servants about the early release of particularly sensitive types of papers … Given that we are recommending a substantial reduction to the 30 year rule, we believe that the government may wish to look again at the exemptions set out in the FoI Act.

8.8 We therefore recommend that, in parallel with the adoption of a 15 year rule, the government, in consultation with interested parties, may wish to consider whether there is a case for enhanced protection of such categories of information.

So what may be under consideration is a change along the following lines.  The 30 year rule would be replaced by a 15 year rule; and at the same time some categories of information that are at present covered by a qualified exemption under the Freedom of Information Act 2000 would become subject to absolute exemption.  Possible candidates for this treatment might be Cabinet minutes, or some forms of policy advice in central Government.  A change of this nature might not even need primary legislation; an attempt could be made to implement the change by making an order under section 7(3) of the Freedom of Information Act.  This was the technique that was used in the recent (abandoned) attempt to amend FOIA in relation to MPs expenses:  see https://news.bbc.co.uk/1/hi/uk_politics/7839281.stm

I would make two brief comments.  One is that the Dacre proposals in relation to the 30 year rule envisage that the change to a 15 year rule would be made over a long transitional period, coming fully into effect by 2025.  Presumably any change in the FOIA exemptions would not be subject to any corresponding transition.  A second is that the Environmental Information Regulations 2004 (EIR) could not be amended in the same way, since they implement a European Directive.  So if the FOIA exemptions are tightened, expect a great deal more argument about whether particular requests fall within FOIA or EIR.

For Jack Straw’s statement see:

https://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090224/debtext/90224-0004.htm#09022444000162

For the Dacre Report see:

https://www2.nationalarchives.gov.uk/30yrr/30-year-rule-report.pdf

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