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Post-legislative scrutiny of the Freedom of Information Act 2000

26 July 2012

The Freedom of Information Act is generally working well and its scope should not be diminished, although some concerns raised about its operation need to be addressed, according to MPs on the Justice Select Committee who have scrutinised the effectiveness of the legislation.

Sir Alan Beith MP, Chairman of the Justice Committee, said:

"The Freedom of Information Act has enhanced the UK’s democratic system and made our public bodies more open, accountable and transparent. It has been a success and we do not wish to diminish its intended scope, or its effectiveness. The Act was never intended to prevent, limit, or stop the recording of policy discussions in Cabinet or at the highest levels of Government, and we believe that its existing provisions, properly used, are sufficient to maintain the ‘safe space’ for such discussions. These provisions need to be more widely understood within the public service. They include, where appropriate, the use of the ministerial veto."

Policy formulation, safe spaces and the chilling effect

Some former Ministers and senior civil servants gave evidence to the inquiry arguing that FOI is having a ‘chilling effect’ on policy discussion at the heart of government. The ability for officials to provide frank advice to Ministers, the opportunity for Ministers and officials to discuss policy honestly and comprehensively, the requirement for full and accurate records to be kept and the convention of collective Cabinet responsibility, might all be threatened if an FOI regime allowed premature or inappropriate disclosure of information.

The Committee looked at the very limited evidence available, recognised there could be a problem--at least of perception--at the highest levels of policy formulation, but believed that the existing provisions of the Act could be used more effectively to give assurance that there was no need for high-level policy discussions, and the recording of such discussions, to be inhibited by the Act.

The MPs have, however, reiterated that it was the clear intention of Parliament when passing the legislation to allow a “safe space” for policy discussions and called for guidance to be issued to civil servants about the protections in the Act. The MPs accepted that it could be appropriate to use the ministerial veto to ensure a “safe space” for high-level policy discussions.

The MPs were concerned that, despite making public criticisms of the legislation introduced while he was Prime Minister, Tony Blair failed to give evidence to the inquiry. Sir Alan Beith MP, said:

"Former Prime Minister Tony Blair described himself as a ‘nincompoop’ for his role in the legislation, saying that it was ‘antithetical to sensible government’. Yet when we sought to question Mr Blair on his change of opinion he refused to defend his views before us and submitted answers to our written questions only after our Report was agreed, and after a press report had appeared, suggesting we might criticise his failure to give evidence. We deplore Mr Blair’s failure to co-operate with a Committee of the House, despite being given every opportunity to attend at a time convenient to him."

Cost and Fees

The number of Freedom of Information (FOI) requests is growing as awareness of the legislation increases and some evidence to the inquiry raised concerns. Some witnesses suggested introducing fees for FOI requests in order to recover some costs. However, the report concludes that while FOI imposes costs, it also creates savings when the inappropriate use of public funds is uncovered – or where fear of disclosure prevents the waste of public money. The MPs acknowledge the economic argument in favour of the freedom of information regime being more self-funding. Nevertheless, the Committee concludes that setting fees at a level high enough to recoup costs would deter requests with a strong public interest and therefore defeat the purposes of the Act. Fees introduced purely for commercial and media organisations could also be circumvented, MPs believe. Sir Alan Beith MP, added: 

"Evidence we have seen suggests that reducing the cost of FoI can be achieved if the way public authorities deal with requests is well-thought through.

Complaints about the cost of FoI will ring hollow when made by public authorities which have failed to invest the time and effort needed to create an efficient freedom of information scheme."

The MPs made a number of further recommendations to improve FOI:

  • Higher fines should be imposed for destruction of information or data and the time limit should be removed on prosecution of these offences.
  • The law should be amended to protect universities from having to disclose research and data before the research has been published.
  • All public bodies subject to the Act should be required to publish data on the timeliness of their response to freedom of information requests.
  • The right to access information must not be undermined by the increased use of private providers in delivering public services and contracts for private providers should be explicit and enforceable in stipulating FOI obligations.
  • Where public authorities publish disclosure logs, the names of those requesting information should be included.

Further information