The Freedom of Information Act: social revolution or most notable for its exemptions?

The Freedom of Information Act (FOIA) went live on 1 January 2005. More than 100,000 public authorities will have to respond to ‘information access requests’ within a short timeframe, usually 20 days. Anybody can request information of any type from any public authority, which has a duty to respond and, unless a statutory exemption applies, has to provide the information requested. If the cost of providing that information is less than £450, there will be no fee.

The consequences are potentially revolutionary, with untold millions of pages of documents and computer files being opened up to public scrutiny. A recent survey by the Information Commissioner showed that individual departments have recognised that ‘cultural change’ is required and are taking steps to bring this about. The last few months have seen a series of juicy revelations based on application of freedom of information principles. These include matters such as MP’s expenses, judge’s pensions and the increasing expense of running the Scottish Information Commissioner’s office. Such issues will inevitably grow.

But despite all the positive noises coming from the Government, many commentators suspect that the FOIA may be less of a big bang and more a damp squib. They point to the 24 separate exemptions in the act. These cover areas from defence to “communications with Her Majesty”, from the “formulation of government policy” to information provided in confidence. Seven of these exemptions are “absolute”; the others are “qualified”, involving consideration of whether the public interest in maintaining the exclusion outweighs the public interest in disclosure. Certain bodies such as the Security Service, the Secret Intelligence Service and the Government Communications Headquarters are excluded from the act altogether. There have been recent reports of government departments shredding records in anticipation of the act coming into force. It is difficult to know how requests are going to be dealt with after 1 January. If the approach is cautious and conservative, the anticipated flood of information is more likely to be a trickle.
It seems likely that, at the outset, there will be a series of small explosions rather than big bangs. As a recent commentator put it: “It will take some hard work to open it up. But at least now people have the tools to do that.” Areas of dispute that are likely to result in litigation concern the qualified exemptions relating to investigations and proceedings conducted by public authorities, law enforcement, formulation of government policy and prejudice to effective conduct of public affairs. It seems likely that many of these disputes will have to be resolved by the courts.

One area of particular interest to lawyers is the potential for commercial entities to use the FOIA to obtain information about competitors. Those operating in heavily regulated sectors are likely to be particularly interested in knowing what is available. In most other countries with similar legislation, ‘business requests’ have been one of the largest categories. The FOIA does not provide any formal procedure by which the ‘owners’ of information submitted to government can prevent it from being disclosed – so called ‘reverse freedom of information’. However, the code of practice under Section 45 of the act makes it clear that it will be good practice to consult with the “owners” before making disclosure. Information – the disclosure of which would constitute a breach of confidence – comes under an “absolute exemption”, but in each case the “public interest defence” to breach of confidence claims will have to be considered. If a company disagrees with a decision to disclose its own information, then an injunction to restrain disclosure could be sought. Applications of this kind are commonplace in other jurisdictions. It remains to be seen how matters will develop here. Exciting times lie ahead for public and information lawyers.