MPs reject wholesale reforms to FOI regime despite "chilling effect" claims

The scope of the Freedom of Information Act 2000 should not be diminished but concerns over its operation must be addressed, MPs have said.

In a report the Justice Select Committee suggested that 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 those discussions, to be inhibited by the Act”.

This was in response to claims from some former ministers and senior civil servants that the Act was having a “chilling effect” on policy discussion in government.

The committee said there was very limited evidence available on the issue, but accepted that there might be a problem – “at least of perception” – at the highest levels of policy formulation.

It recommended that guidance be issued for civil servants on the protections available under the Act. The MPs said they recognised that it could be appropriate to use the ministerial veto to ensure a so-called ‘safe space’ for high-level policy discussions.

The report also concluded that there was no justification for the introduction of fees for making FOI requests, despite concern over the growing number of requests being made.

The MPs argued that while the regime imposed costs, it also created savings where inappropriate use of public funds was uncovered or where fear of disclosure prevented the waste of public money.

The report warned that setting fees at a high enough level to make the system self-funding would deter requests with a strong public interest “and therefore defeat the purposes of the Act”.

It also ruled out the introduction of fees purely for commercial and media organisations, saying that this could easily be circumvented.

The committee meanwhile warned that the right to access to 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”.

Other recommendations in the report included:

• 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.
• Where public authorities publish disclosure logs, the names of those requesting information should be included.

Commenting on the report, Committee Chairman Sir Alan Beith MP 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."

On the issue of fees, Sir Alan said the evidence suggested that reducing the cost of FOI could be achieved if the way public authorities dealt with requests was “well-thought through”.



He added: “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 meanwhile sharply criticised former Prime Minister Tony Blair for refusing to appear. Blair had previously attacked the FOI regime as “antithetical to sensible government”.

The committee said it deplored the former PM’s failure to co-operate, after he submitted answers to written questions only after the report had been agreed and a press report appeared that suggested he might be criticised for failing to give evidence.

A copy of the report can be found here. It will now be considered by the Ministry of Justice.

A spokesperson for the Information Commissioner’s Office said the watchdog welcomed the report’s recognition that there was little evidence to support a case for significant change to the legislation.

“The minor changes proposed would, on the whole, enhance rather than detract from the public right of access to information,” they said.

In a blog, Information Commissioner Christopher Graham criticised the “doom-mongering” about the Freedom of Information Act in recent weeks.

He wrote: “The Freedom of Information Act 2000 has opened up the corridors of power to greater scrutiny, and government, at all levels, is better for it. The Act is not without its critics, but in providing a largely free and universal right of access to information, subject to legitimate exceptions, we believe the freedom of information regime is fit for purpose.”

Graham said the ICO appreciated the committee’s comments about the need to protect the safe space for policy making at the highest levels in central government.

“We believe these legitimate concerns are consistent with the Commissioner’s approach to the issue, as evidenced by various decisions, for and against the disclosure of information,” he said, adding that the ICO would consider carefully whether its guidance on the application of this exemption required any revision in the light of the committee’s comments.

But the Commissioner added: “Negative comments by senior figures about the safe space issue only serve to create a false perception, and inaccurate suggestions that the Act is not regulated consistently or as Parliament intended may discourage the use of that same ‘safe space for policy making’ for which the law provides. Such baseless comment is less than helpful. The committee's report should help to dispel the myths.”

Graham meanwhile described as “encouraging” the committee’s support of greater powers for the ICO around destruction of requested information.

“The proposed change to remove the time limit on prosecutions would better reflect the seriousness of the offence, as would a higher penalty on conviction,” he said.

Philip Hoult