The view beyond the headline – considering the detail in the FOI Commission’s report

By Steve Wood, Head of Policy Delivery.

F-O-I-blog‘Victory for your right to know’ was the response of many commentators to the report of the Independent Commission on Freedom of Information, published last month.

There is certainly much to welcome in the report, least of all its conclusion “that the Act is generally working well, and that it has been one of a number of measures that have helped to change the culture of the public sector”.

But across the 64 pages and 21 recommendations there is a wealth of detailed comment on how the Act might be tweaked and shaped to improve its operation.

The Government has already responded to some of the recommendations and we look forward to discussing with them over the coming months.

In the meantime, we thought it might be useful to pick out a few key areas, particularly those that go beyond the previous post-legislative scrutiny report.

Mandating publication of compliance stats

The Commission’s regret at a lack of reliable statistics around compliance with the Act was put to Christopher Graham when he appeared before them. He was clear in his admiration for the system operated by the Scottish Information Commissioner, where statistics about compliance with the Freedom of Information (Scotland) Act are published across the public sector.

Of course, there are more public authorities to regulate across the UK, even taking into account the Commission’s proposal to exempt the smallest bodies. And we need to ensure we understand the value and use of any data before asking public authorities to collect it.

But we welcome this recommendation in principle and would be happy to work with the public authorities and government to come up with a mechanism that provides the right information in a clear structured format. Any data publication requirements in this area must be proportionate if critical mass is to be achieved and we are able to gain meaningful comparable insight from the data. We’ll also seek to learn from the Scottish system, which receives data from a high percentage of public authorities. 

Monitoring and ensuring proactive publication obligations

We welcome the Commission’s recommendation that more information should be proactively released about senior executives’ pay and benefits. Requiring more details to be published builds on previous work the ICO has done in publication schemes guidance and we hope that progress can be made in this area without legislation.

Reflection on recommendations related to the exemptions for government policy and conduct of public affairs

The Commission made a series of recommendations that amendments should be made to the exemptions that can cover policy-related information and the prejudice to effective conduct of public affairs (sections 35 and 36 of the Act). The recommendations are essentially about clarifying the scope of the exemptions and providing more guidance about how they should be applied. We recognise that that there is still uncertainty about the protection provided by the exemptions and we will consider whether we can add further clarification to our guidance, which may be the best starting point in addressing the issue.

It is also welcome that the Commission agreed with our view that the public interest test was a key component and shouldn’t be removed from the exemptions.

The Cabinet veto

The Commission recommended the introduction of a narrower and more limited veto provision, available only to overturn decisions of the Information Commissioner. The Commission also supported the idea of a confirmatory veto, a compromise solution we proposed in our evidence.  In their response, the government have confirmed that in future it will only deploy the veto after a decision by the Commissioner. In our evidence to the Commission, we noted that the veto has been used sparingly over the last 10 years, seven times in all. We remain of the view that sparing use of the veto, in exceptional cases, can be regarded as a proportionate and reasonable provision in the context of an FOIA system that has a public interest test for the section 35 and 36 exemptions.

The appeals process

While the report’s support for the Act grabbed the headlines, the recommendation to remove the First-tier Tribunal from the FOIA appeals system could be a significant change for the FOIA system. In our evidence we suggested that mirroring the Scottish system for appeals (where appeals of Commissioner decisions can only be made on a point of law) could make the system more efficient. We acknowledge that there are still important implications to be considered to ensure that the FOI system works fairly and practicably for all parties.

Costs of responding

The Commission received evidence from public authorities about the challenge of FOIA compliance whilst operating on stricter budgets. The Commission considered existing cost rules to be ineffective at allowing public authorities to refuse excessively costly requests. But it also considered evidence that expressed concern at the lack of a public interest aspect to the cost limit.

We’d be reluctant to offer a definitive solution to a topic the Commission concluded it had insufficient evidence to make a final recommendation on, but we would point to our guidance on vexatious requests, which can cover requests that cause disproportionate or unjustified levels of disruption, as well as allowing for greater consideration of the context of the request. We will also provide input into the government’s work to include guidance about vexatious requests in an updated code of practice.

Extending FOIA (specifically around outsourcing)

While the Commission felt it wasn’t within its remit to make recommendations on extending the Act, there was certainly significant discussion of this aspect in the oral evidence sessions, and the final report dedicates several pages to the topic.

We’ve spoken in the past of about the need to “follow the public pound” under FOIA as outsourcing has grown. It was welcome that the Commission decided to cover this issue in their report and assess some the possible solutions, including the need to amend the Act to make it clear that information held by contractors concerning the delivery of public services was caught under FOIA. It will be important that a range of options are considered to address the issue. This is a topic we discuss in more detail in our ‘Transparency in outsourcing’ roadmap, published last year.

Steve WoodSteve Wood‘s department develops the outputs that explain the ICO’s policy position on the proper application of information rights law and good practice, through lines to take, guidance, internal training, advice and specific projects.

 

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