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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

So there we have it: FOIA is working well and does not need to be substantially reformed. These are the overall conclusions of the FOIA review commission, as confirmed today by Cabinet Office Minister Matt Hancock (see the BBC report here). This outcome will come as a surprise (and a huge relief) to many who had believed that the commission would follow the Blair line and conclude that the FOIA genie needed to be put firmly back in its bottle. So apparently a triumphant outcome for those in favour of the transparency agenda, but a sorry day for those who, like Mr Blair, believe that FOIA has had and continues to have a ruinous effect on government.

The full report is due to be published shortly. It will be interesting to see whether, despite Mr Hancock’s announcement, there are some proposed changes which may yet have a rather hobbling effect on the FOIA regime. For example, it is not presently clear whether the report may effectively invite the Government to press ahead with a fees regime for FOIA tribunal cases. That said some media reports are already suggesting that, in response to the report, the Government has ruled out introducing a fees and has also opted not to shore up the veto regime, which was so extensively undermined in Evans v Information Commissioner (see here).

Of course, FOIA is itself a highly politicised football and it is hard to imagine that reining in a legislative regime designed to put power in the hands of the people would have been anything other than a fairly politically toxic proposition for the Government. Certainly, the deep opposition to such a proposition voiced by Labour politicians, such as Tom Watson MP, not to mention Conservative politicians such as David Davis MP, can hardly have reassured the Government that introducing restrictions on the FOIA regime would have been a political walk in the park.

An interesting question which many will now be pondering is whether the conclusions of the commission may actually add grist to the mill of those who are campaigning for an extension of the FOIA regime. For example, one wonders whether in the months to come we shall see a renewed focus on opening up the FOIA regime so that it applies to privatised public functions (see this further Guardian report on Tom Watson MP’s comments on this issue). One thing is for sure however, there will be further discussion both of the commission’s report and its aftermath on Panopticon.

Anya Proops QC

The Northern Irish courts have this week reached an important judgment in a case involving the hosting of unlawful content on youtube. Readers are referred to this helpful Inforrm post on the judgment by Olswang’s Ashley Hurst and Emma Cross.

Anya Proops QC

The law on media reporting of private proceedings continues to develop with the judgment of the Court of Appeal in Re W [2016] EWCA Civ 113. The decision arises out of the care proceedings that followed the death of 13-month old Poppi Worthington which attracted very high levels of public interest and media coverage.

In November 2015, the trial judge (Jackson J) had made various orders allowing for publicity and media attendance at an upcoming fact finding hearing.  These included permission for daily reporting of that hearing, something all parties and judges agreed was very unusual.  These orders were promptly appealed to the Court of Appeal which announced at the time that the appeal would only be allowed to a very limited extent, with its reasoned judgment to follow.  That judgment has now been published and is available here.

The key points from the judgment of McFarlane LJ (which whom Macur and King LJJ agreed) can be summarised as follows: Continue reading →

Like a baby found in a basket of reeds, the long-awaited review of the Independent Press Standards Organisation (IPSO) has appeared over the horizon.

Today IPSO issued a press release announcing the appointment of Sir Joseph Pilling, a retired civil servant, to conduct a review of its independence and effectiveness (for coverage of which see here). The review will be assisted by 11KBW’s own Zoe Gannon.

The terms of reference are available on its website and it is inviting submissions from the general public and key stakeholders. I suspect regular readers of Panopticon will have a lot of things to say (at least some of which will not be a Moses-based pun) and may want to get in touch.

In any event, we look forward to hearing what Sir Joseph concludes on whether IPSO is successfully regulating the press. The plan is for the review to have concluded in six months.

Christopher Knight