FOIA commission report published

Posted on | by Anya Proops KC

You can access the report here. The commission’s recommendations are at pages 57-58. Key recommendations to note:

  • s. 35 (exemptions in respect of government policy information) 
    • s. 35(1)(a) should be replaced with an exemption ‘which will protect information which would disclose internal communications that relate to government policy’. [NB, it is not suggested in the report that this exemption should be cast as an absolute exemption. Rather this is about reframing the terminology of s. 35(1)(a)]
    • s. 35(1)(b) should be expanded to cover information relating to collective Cabinet decision-making, as well as protecting inter-ministerial communications.
    • re the public interest test, section 35 should be amended to make clear that:
        • ‘in making a public interest determination under section 35(1)(a), the public interest in maintaining the exemption is not lessened merely because a decision has been taken in the matter’.
        •  ‘in making a public interest determination under section 35, regard shall be had to the particular public interest in the maintenance of the convention of the collective responsibility of Ministers of the Crown, and the need for the free and frank exchange of views or advice for the purposes of deliberation.’
  • S. 36 (prejudice to conduct of public affairs) – the requirement for the reasonable opinion of a qualified person should be removed
  • the veto
    • ‘The government should legislate to put beyond doubt that it has the power to exercise a veto over the release of information under the Act’
    • ‘The government should legislate to make clear that the power to veto is to be exercised where the accountable person takes a different view of the public interest in disclosure. This should include the ability of the accountable person to form their own opinions as to as to all the facts and circumstances of the case, including the nature and extent of any potential benefits, damage and risks arising out of the communication of the information, and of the requirements of the public interest.
    • the veto ‘should be available only to overturn a decision of the IC where the accountable person takes a different view of the public interest in disclosure. Where a veto is exercised, appeal rights would fall away and a challenge to the exercise of the veto would be by way of judicial review to the High Court. The government should consider whether the amended veto should make clear that the fact that the government could choose to appeal instead of issuing a veto will not be a relevant factor in determining the lawfulness of an exercise of the veto. Until legislation can be enacted, the government should only exercise the veto to overturn a decision of the IC.
    • ‘The government should legislate to allow the veto to also be exercised even where the IC upholds a decision of a pubic authority. This would mean that the right of appeal would fall away and challenge would be instead by way of judicial review.
  • limiting the scope for appeals: ‘That the government legislates to remove the right of appeal to the First-tier Tribunal against decisions of the IC made in respect of the Act. Where someone remained dissatisfied with the IC’s decision, an appeal would still lie to the Upper Tribunal. The Upper Tribunal appeal is not intended to replicate the full-merits appeal that currently exists before the IC and First-tier Tribunal, but is limited to a point of law’
  • extensions of time to respond to FOIA requests – limited to an additional 20 days
  • internal reviews – statutory time limit of 20 days for internal reviews
  • publication obligations to be imposed on all FOIA authorities which employ more than 100 employees – to include duties to publish: (a) statistics on compliance with FOIA and (b) all requests and responses where information is provided in response to a request. Public bodies should be required to publish pay breakdown for senior employees
  • code of practice – FOIA code of practice should be reviewed. Revised code should encourage public authorities to use s. 14 in an appropriate way
  • ICO funding – The Government should review whether funding for the ICO is adequate.

More detailed analysis will no doubt follow in due course

Anya Proops QC