Paul Gibbons comments on the Ministry of Justice’s response to the Post-Legislative Scrutiny report on behalf of the Save FOI Campaign.
An inquiry set up at the Government’s instigation spends months gathering evidence. It publishes a report making measured, proportionate recommendations. And the Government rejects them and decides to do what it originally wanted to do anyway.
Sounds strangely familiar. And this describes exactly what has happened with the post-legislative scrutiny of the Freedom of Information Act.
On Friday, 4 months after the Justice Select Committee published its report, the Ministry of Justice published its response. And it has brought us full-circle back to the position we were in exactly one year ago.
It is to be welcomed, of course, that the Government has rejected charging for FOI requests, as we reported earlier last week. And that no changes will be made to the exemption for policy formulation.
But in almost every other area the Government has decided to take its own course on FOI. And in many cases we remain in the dark as to what it will do.
The Committee rejected the inclusion of reading and consideration time within estimates of the cost of FOI requests. As indeed did the last Government. But not only has the Ministry of Justice vowed to continue looking at this option, it has also said that it will consider other ways to bring more FOI requests outside the acceptable limit, including a possible reduction in the limit. Overall, whilst paying lip service to FOI’s benefits, the Ministry’s response focusses to an alarming degree on the perceived burden of FOI.
In this context, the Government has decided to look at charging for appeals to the Information Tribunal. Something which, to our knowledge, was never raised during this whole process of review. It is possible this will have limited effect on requesters – as they would only be involved directly in appeals against decisions of the Information Commissioner – but as with much else referred to in this response, we will have to wait for the detail to be sure.
It is widely recognised that the lack of statutory restriction on time to consider internal reviews and public interest are deficiencies in the Act. Some authorities have delayed responses for many months. It was not a surprise then that the Committee recommended the establishment of deadlines for these processes. So it is a considerable – and unwelcome – surprise to find that the Government has rejected these recommendations.
Similarly reasonably, the Committee had recommended extending the period within which individuals could be prosecuted for destroying or hiding information requested under FOI. The Government has agreed that change is needed but its proposal that the 6 month window for prosecution should remain but be triggered when the offence is discovered rather than when it occurs would be an improvement – but only a modest one.
The Government is planning extensive revisions to the Section 45 Code of Practice. It wants to provide new instruction there not only on how the provisions for vexatious requests should be used, but also on how section 8, which sets out the definition of a valid request under the Act, should be interpreted. It is hard to avoid the suspicion that any change there is likely to encourage a narrower approach than that currently favoured by the Information Commissioner.
One of our concerns with the Committee’s report was with its suggestion that the ministerial veto should be used in circumstances other than exceptional. The Ministry of Justice has accepted this recommendation with gusto, and indeed appears to be considering widening the scope of circumstances in which the veto might legitimately be used.
Sensible suggestions, such as the recommendation that public authorities should publish statistics on their compliance, have been rejected. In this case it is suggested that this would place additional burdens on authorities for no discernible benefit. How publishing statistics that are already held can be considered an unreasonable burden it is not clear, and the benefits are obvious. The Information Commissioner and others would have been able to see which authorities were struggling with FOI and appropriate action could be taken. At the moment, authorities in many parts of the public sector can very easily hide their poor performance, and the Government appears to be sanctioning this.
Where the Government has decided to take the Committee’s advice, it is not particularly clear why in some instances. Having explained that there are plenty of exemptions that could potentially be used to protect research data from premature disclosure, the Ministry of Justice indicates that it is minded to accept the recommendation to introduce a new exemption, purely because the lack of a specific exemption for research gives “the impression that FOIA does not provide adequate protection”. This seems a particularly odd reason to legislate when almost every other change requiring legislation has been rejected.
There are some positive signs. Whilst agreeing with the Committee that companies providing public services should not be made subject to FOI at present, the Government does reserve the right to do this in the future if there are signs that companies or public authorities are not interpreting FOI as positively as they should. And they are looking at making it easier to add authorities to the Act’s coverage.
But overall, it looks very much as though the Government will do what it wants to do to FOI, whatever the views of the Justice Select Committee. Comparing its response to the Committee to the memorandum that it issued a year ago, it is clear that the Ministry of Justice has not changed its views in respect of most of the matters the Committee was asked to consider. Which begs the question: why did it decide to ask for an inquiry in the first place?
And what is most alarming is the extent to which many changes are still under consideration. A year after this process started, the Ministry of Justice is still examining its options, and we have limited assurances as to the future of the Act in its present form. Rest assured, the Save FOI campaign will be watching the Government to see what happens next. We recommend that anyone with an interest in FOI does so too.