It is clear from the commission’s terms of reference that its purpose is to consider new restrictions to the Act. The Commission’s brief is to review the Act to consider: whether there is an appropriate balance between openness and the need to protect sensitive information; whether the “safe space” for policy development and implementation is adequately recognised; and whether changes are needed to reduce the Act’s “burden” on public authorities. The ministerial announcement of the Commission’s formation stressed the need to protect the Government’s “private space” for policy-making.
The Commission’s five members consist of two former Home Secretaries, Jack Straw and Lord Howard of Lympne, a former permanent secretary, Lord Burns, a former independent reviewer of terrorism legislation, Lord Carlile of Berriew, and the chair of a regulatory body subject to FOI, Dame Patricia Hodgson.
Mr Straw has repeatedly maintained that the Act provides too great a level of disclosure. He has argued that the FOI exemption for the formulation of government policy should not be subject to the Act’s public interest test. Such information would then automatically be withheld in all circumstances even where no harm from disclosure was likely.
Mr Straw has also suggested that the Supreme Court exceeded its powers in ruling that the ministerial veto cannot be used to overturn a court or tribunal decision under the Act unless strict conditions are satisfied. He has argued that there should be charges for FOI requests – that it should be significantly easier for public authorities to refuse requests on cost grounds.
Speaking in the Commons shortly before the Commission’s appointment, the Justice Secretary, Michael Gove, expressly cited Mr Straw’s views with approval saying that he had been “very clear about the defects in the way in which the Act has operated”.
Another member of the Commission is Ofcom’s chair, Dame Patricia Hodgson. In 2012, when she was its deputy chair, Ofcom stated that “there is no doubt” that the FOI Act has had a “chilling effect” on the recording of information by public authorities.
One of the Commission’s priorities is likely to be to consider whether there has been such an effect – and whether the right of access should be restricted to prevent it. Ofcom has also called for it to be made easier for authorities to refuse requests on cost grounds and for the time limits for responding to requests to be increased.
An independent commission is expected to reach its views based on the evidence presented to it rather than the pre-existing views of its members. Indeed, in appointing members to such a body we would expect the Government to expressly avoid those who appear to have already reached and expressed firm views. It has done the opposite. The Government does not appear to intend the Commission to carry out an independent and open-minded inquiry. Such a review cannot provide a proper basis for significant changes to the FOI Act. The short timescale for the Commission’s report, which is due by the end of November, further reinforces this impression.
The FOI Act was the subject of comprehensive post-legislative scrutiny by the Justice Committee in 2012 which found that the Act had been “a significant enhancement of our democracy” and concluded “we do not believe there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits”. We question the need for a further review now.
We are also concerned about the Government’s proposal to introduce fees for appeals against the Information Commissioner’s decisions. Under the proposals, an appeal to the First-Tier Tribunal on the papers would cost £100 while an oral hearing would cost £600.
Requesters often seek information about matters of public concern, so deterring them from appealing will deny the public information of wider public interest.
On the other hand, fees are unlikely to discourage public authorities from challenging pro-disclosure decisions.
Given that the Ministry of Justice and the Justice Committee have recently begun to review the impact of employment tribunal fees on access to justice, we find it remarkable that this proposal should be put forward before the results of their inquiries are even known.