Committee casts vote for freedom

The FOIA does not require any significant changes, the HoC Justice Committee has found

Anya Proops
Anya Proops

It is now seven years since the Freedom of Information Act 2000 (FOIA) came into force. For many, FOIA has marked a hugely important constitutional step in the process of rendering the state more transparent and accountable to its citizenry. For others, the act has become something of an albatross, stultifying the operation of government by imposing disproportionate administrative burdens and creating a culture where many are reluctant to speak openly or record their discussions for fear that their private views will become available for public consumption. Now the House of Commons Justice Committee has had its say on the matter.

In its wide-ranging first report on how FOIA has been operating since it came into force, the Justice Committee has largely endorsed the current structure and content of the legislation – something that the information commissioner clearly welcomed in a statement dated 26 July 2012.

Perhaps most significantly, the committee has rejected calls for FOIA to be amended to render information relating to high level policy discussions, including cabinet discussions, absolutely exempt from disclosure. The committee’s position is that FOIA, as currently constituted, already provides a sufficiently secure ‘safe space’ for policy making. In its view, this result is effectively achieved through the combined effects of the qualified exemptions provided for under sections 35 and 36 of FOIA and the availability of the ministerial veto under section 53 of FOIA. The committee’s emphasis on the ministerial veto as an important backstop preventing what the Government sees as unjustified disclosures is particularly noteworthy.

The current Government has already arguably shown itself to be more inclined to use its powers of veto than the previous government. Most recently, it courted controversy by vetoing the Information Tribunal’s decision to order the disclosure of a risk register relating to the Government’s proposals to reform the NHS in Department of Health v IC, Healey and Cecil (2012). Another veto may shortly be issued in the case of Plowden and FCO v Information Commissioner. The interesting question is whether the Government will now take the committee’s report as an open invitation to ramp up its use of the veto – something that may itself invite legal challenges from those campaigning for more open government.

Other important aspects of the report include that it has not recommended significant changes to the way public authorities assess the costs of responding to requests. Most importantly, it has rejected calls for the legislation to be amended to enable public authorities to take into account time spent on applying exemptions when estimating costs for the purposes of section 12 of FOIA. The committee also rejected calls emanating from the university sector for universities to be removed from the scope of FOIA altogether.

More generally, the committee found that FOIA was working well and has been a boon to our democracy, contributing to a culture of greater openness and bringing with it constitutional benefits that outweigh the undoubted administrative disbenefits.

Anya Proops is a barrister at 11KBW and specialises in information law