UK Government Proposes to Broaden Scope of FOI Law

7 January 2011

The British government Jan. 7 proposed reforms to the United Kingdom freedom of information law that would extend its scope to more organizations and hasten the release of archived material.

The proposed amendments also would enhance the independence of the Information Commissioner’s Office.

Added protection would be given to information relating to the Royal Family, according to the announcement, which said the bill would be introducd in February.

In addition, the Freedom of Information Act “will be amended in the Freedom Bill to ensure public authorities proactively release data in a way that allows businesses, non-profit organisations and others to re-use the information for social and commercial purposes,” according to the press release, which did not elaborate.

The announcement by the Ministry of Justice was explained in a speech by Deputy Prime Minister Nick Clegg who also revealed plans to reform the UK’s libel laws, which he called an “international farce.” He said a draft defamation bill to be put out in a few months will include a statutory defense for those speaking out in the public interest, “whether they be big broadcasters or the humble blogger.”

Clegg said: “Recent years have seen some progress on transparency. Most notably through the introduction of the Freedom of Information Act.” He continued:

“But that progress has stalled, The Freedom of Information Act was a good start, but it was only a start. Exceptions remain far too common. And the available information is too often placed behind tedious bureaucratic hurdles.

The previous Labour Government knew this but chose to respond to repeated calls for the extension of freedom of information by kicking the issue into the long grass.

Links to a podcast of his speech and the text are here.

Many of the proposals had been promised by the Liberal Democrats during the 2010 election campaign, as noted by Martin Rosenbaum in his Open Secrets blog. In a preview Jan. 6, he also noted that the proposal “will not go as far as some ideas proposed by the Liberal Democrats when in opposition, such as repealing the right of ministers to veto tribunal decisions instructing them to release material they want to keep secret.”

The Campaign for Freedom of Information said the government was not expanding the scope of the law enough. It questioned the exemption for the Royal Family and the term-limit idea.

Expanded Scope Outlined

A few additional institutions would be brought under the FOI law immediately and consultations would begin on including others.

As a first step, the law would be extended to cover “companies wholly owned by more than one public authority (as opposed to only those owned by a single public authority).”

“Secondary legislation (following statutory consultations with the bodies concerned) will extend the Act to a range of other bodies performing functions of a public nature,” according to the announcement. The Association of Chief Police Officers, UCAS and the Financial Ombudsman Service have already been consulted and will be brought under FOI as soon as possible, the announcement continued.

The list of about 20 bodies to be potentially covered include: the British Standards Institute, the Carbon Trust, the Law Society and the Panel on Takeovers and Mergers.

Making ICO More Independent

The planned “Freedom Bill” would remove the requirement that the Information Commissioner seek the Secretary of State’s consent in relation to the appointment of staff, their pay and pensions etc.

It would limit the Commissioner to a single 5 year term and “make the appointment process more transparent, including a greater role for Parliament.” It would define “specific circumstances under which he may be removed from office.”

“There will also be provisions for the Commissioner to set charges for certain services independently, and to issue statutory guidance without the sign off of the Secretary of State,” the announcement said.
 In addition to regulating the FOI Act, the Commissioner is also responsible for the Data Protection Act, the Environmental Information Regulations and the Electronic Communication Regulations.

Rosenbaum noted, “However, this does not go as far as making the post report to Parliament rather than the Ministry of Justice, the level of independence which Chris Graham, the commissioner, has called for.”

Faster Releases From Archive

The time period for the release of historical records would be cut from 30 to 20 years by the proposal.

This change “will be transitioned over a 10 year period at a rate of two years’ worth of records being transferred per year, with a view to commencing the process in 2013.” Parallel reductions would be made in the lifespan of certain exemptions.

Proactive Disclosure

Clegg pledged that “the government is going to transform the access citizens have to the information we believe is their right.”  He continued:

Francis Maude has been doing an excellent job on this. He has imposed stringent new transparency rules on Whitehall Departments, ensuring they publish, for example, much more data on the money they spend and the private companies awarded government contracts.

Working with Ed Davey, Francis is also developing plans for a new Public Data Corporation.
It will bring existing government bodies together into one organisation, responsible for disseminating a wealth of data.

Businesses, social enterprises and individuals will find it much easier to get hold of the information they need.

Oversight Pledged

Justice Minister Lord McNally said in a statement that besides the legislation, the government “will be carrying out a full review of the FOI Act to ensure it is still operating in the most effective way.”

Proposal Welcomed, With Reservations

The Campaign for Freedom of Information praised the proposal, but with caveats.

CFOI noted that both the Conservatives and Liberal Democrats had promised that Network Rail would be covered and that the Conservatives’ had also promised to cover Northern Rock. Neither body is being covered. Many other individual bodies, including electoral registration officers and returning officers should also be added, the Campaign said.

Companies providing contracted out functions to be brought under the Act, particularly those relating to health, social services, education and criminal justice and for the Act to be extended to housing associations, the Campaign also said.

The Campaign said it was “unhappy” with the Royal Family provision. It said: “At present, communications with the Royal Family are exempt, but potentially disclosable on public interest grounds. In future the public interest test will be removed for communications with the monarch and the next two in line to the throne. The Campaign said that where Prince Charles was seeking to actively intervene in policy decisions, his input would be withheld in all circumstances, even if it had played the decisive role.”

Finally, the Campaign called the suggested term-limit for  the Information Commissioner  “potentially double-edged sword.” It explained: “Limiting appointment to a single term only meant that the Commissioner could not be tempted to comply with the government’s wishes in order to be reappointed. But appointing a new Commissioner every 5 years could be potentially disruptive, as a new Commissioner needed at least a year to master the brief, and the Campaign suggested the Commissioner’s term of appointment should be extended to 6 or 7 years.”

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