Government Response on FOI

The Government recently responded to the Justice Committee’s post-legislative scrutiny of FOI. Below are some of the highlights. You can also see what FOI man said here.

In summary it’s a mix of the good (no upfront fees), the bad (revising cost limits) and the ‘let’s wait and see’ (exemption for universities and, the Oldie but Goldie extending FOI to other organisations).

FOI does not necessarily improve trust (though the jury is still out) but does have beneficial effects on democracy (see our take here).

The Government agrees that improved trust in Government may not have been an entirely realistic objective of FOIA. Nonetheless, some limited evidence suggests that FOIA has resulted in greater public trust in Government.

Although FOIA can result in criticism of public authorities, this tends to represent a minority of cases. The Government agrees that, notwithstanding any negative coverage of public authorities generated as a result of FOIA, the increased openness, transparency and accountability of public authorities brought about due to FOIA have lead to significant enhancements of our democracy.

There should be no upfront fees for requests…..(see some work on the cost of FOI here)

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act. For commercial requesters, the Government’s Transparency Agenda has been supportive of the role that public sector information can play in driving economic growth and thus, the Government is not minded to seek to curtail the ability of those seeking information for commercial purposes.

3. But it may be possible to lower the threshold or calculate differently.

It is the Government’s view that it ought to be possible to take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been exceeded.

The Government does not share the assessment of the Committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.

The Government will also look at other options to reduce the burden on public authorities in relation to the cost limit. These will include the possibility of reducing the current overall limits of £600 and £450

The government may revise how the veto is used (for some background on veto use see here)

The Government is minded to review and, as appropriate, revise the policy on the use of the veto. As part of that review, we propose to consider how the veto policy can be adapted both in terms of the process involved in its use and to offer greater clarity and reassurance on its ability to offer appropriate protection in addition to that which it provides in the context of information relating to collective Cabinet responsibility.

Universities may be given a special exemption for research, as exists in Scotland (see our research on FOI and Universities here)

The Government is minded to amend FOIA to introduce a dedicated exemption, subject to both a prejudice and public interest test, as recommended by the Committee. The Government shares the Committee’s view that this would constitute a proportionate response to the concerns expressed. The Government also agrees that such a measure should be reviewed at a suitable point after introduction

It may also extend FOI (if deemed necessary)? (this has been a long term commitment-but can they get around the ‘classic’ arguments against it ?)

We intend to continue consultations with over 200 more organisations, including the Local Government Group, NHS Confederation, harbour authorities and awarding bodies, about their possible inclusion in relation to functions of a public nature that they perform; and then to consult more than 2000 housing associations on the same basis. Where we conclude that such bodies are performing functions of a public nature, we intend to legislate under section 5 of FOIA to bring them within the scope of FOIA in relation to those functions, unless there are very good reasons not to, by spring 2015.

So what does this tell us? Some of the more high profile announcements may be less important than they seem. The veto, for example, has been rarely used. Few requests are made for university research and extending FOI has been an aim, but not an achievement, of at least two UK governments and one Scottish.  The interesting question is what these proposals tell us-the veto shift and proposal to charge for appeals to the Tribunal may indicate concern about FOI at higher levels of government, the University exclusion concern from senior levels of Higher Education.

The silent killer here may be the fees threshold. Reducing time spent or adding more activities to what is counted could mean many more requests hit the ceiling.

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