No change a victory for Freedom of information after its 10-year review

The Burns Commission, which recently completed its review of the working of the Freedom of Information Act (FOIA), does not propose any substantial changes to the law. The Commission does not recommend charges for requests and the government has accepted this recommendation, nor does it make any formal recommendations regarding costs to public authorities. It is of the view that the public interest test should not be removed from the s.35 exemption for formulation of government policy, and recommends removing the right of appeal against the ICO's decisions to the First Tier Tribunal.

At Freedom of Information: Where does the right to know end? seminar on 17th March in London , all speakers were relieved by the fact that the Freedom of Information Act had emerged unscathed by what had been perceived as a critical Burns Commission (PL&B UK Report September 2015 p.9). Companies are, no doubt, relieved that the government has no plans to amend the law to extend the FoI Act to companies providing services to public sector bodies.

Maurice Frankel, Director, the Campaign for Freedom of Information, explained that several factors led to the Commission’s support for, in effect, little change:

• the weight of evidence that the law was fairly balanced between requesters and public authorities, and
• opposition to weakening the law by the media and MPs of all parties.

Frankel thinks that the proposal to remove the route to appeal to the First Tier Tribunal is a mistake: ‘The Commission's own figures show that 21% of appeals by requesters are partly or wholly successful, which we think is a respectable success rate. Removing the right of appeal would deprive these requesters of a remedy (though they could still appeal to the Upper Tribunal on a point of law). The government has not commented on this proposal. However, as it would require legislation, it appears not to be a runner for the time being.’

The majority of the Commission's recommendations (including those that would strengthen the Act) would require legislation to implement. So the apparent ruling out of legislation seems to indicate that most of the recommendations will not be implemented. Frankel stated that “no change” was a victory for the FOI law based on support for the law from many sides.

Steve Wood, Head, Policy Delivery, the Information Commissioner’s Office, stated that the ICO’s current annual budget for FoI work is £3.7 million but with an increase, it could do more proactive work, such as audits. The ICO is now also responsible for enforcing the Reuse of Public Sector Information Regulation. The ICO is of the view that the public sector should not shy away from using the vexatious request provision to decline FoI requests but should keep an audit trail to show their evidence for taking this type of decision.

Future FoI issues

PL&B UK Report will continue to monitor major FOI developments that have an impact on the public and private sectors. Speakers at the event referred to the following future issues:

1. The rapid growth of information and whether records managers can keep pace in organising archives.
2. Increasing outsourcing of work to private companies not subject to the FoI Act.
3. Bring your own device – where is the information stored?
4. Information stored in cloud and other external systems. Much information is lost as a result of poorly drafted contracts. The ICO helpfully published in March 2015 Transparency in Outsourcing: A roadmap and Outsourcing and freedom of information - guidance document.
5. Use of private systems by ministers and officials.
6. Private water companies, such as Northumbrian Water Group, are now clearly subject to the Environmental Information Regulations.
7. Decisions being made by software. With the growth of Artificial Intelligence, one can expect future FoI requests for computer code, as machines do not have privacy rights.