Review of FOIA – call for evidence

October 9th, 2015 by Anya Proops KC

The commission set up by the Government to review FOIA, in the wake of the Evans judgment, has today issued a call for evidence, as part of a six week consultative exercise (see here). The questions posed in the call for evidence tend to reconfirm the overall impression that the commission is keen to explore ways in which FOIA can be recalibrated so as to be a more State-friendly enactment. The commission has made clear that it is particularly focussed on the following six questions:

‘Question 1: What protection should there be for information relating to the internal deliberations of public bodies? For how long after a decision does such information remain sensitive? Should different protections apply to different kinds of information that are currently protected by sections 35 and 36?

Question 2: What protection should there be for information which relates to the process of collective Cabinet discussion and agreement? Is this information entitled to the same or greater protection than that afforded to other internal deliberative information? For how long should such material be protected?

Question 3: What protection should there be for information which involves candid assessment of risks? For how long does such information remain sensitive?

Question 4: Should the executive have a veto (subject to judicial review) over the release of information? If so, how should this operate and what safeguards are required? If not, what implications does this have for the rest of the Act, and how could government protect sensitive information from disclosure instead?

Question 5: What is the appropriate enforcement and appeal system for freedom of information requests?

Question 6: Is the burden imposed on public authorities under the Act justified by the public interest in the public’s right to know? Or are controls needed to reduce the burden of FoI on public authorities? If controls are justified, should these be targeted at the kinds of requests which impose a disproportionate burden on public authorities? Which kinds of requests do impose a disproportionate burden?’

No doubt much can be gleaned about the commission’s direction of travel from these questions. However, the commission’s repeated use of the ‘how long’ question is particularly interesting. Query whether it suggests that the commission is looking to propose minimum terms for the disclosure of certain categories of information, for example under ss. 35 and 36. Such a blanket approach to the protection of particular classes of information under these provisions would of course would mark a significant departure from the current more case/fact-specific approach presupposed by these provisions as currently framed. No doubt further commentary on Panopticon will follow in due course.

Anya Proops

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