Freedom of information lives on

The Freedom of Information Act is here to stay. At any rate for the time being. That is the good news implicit in the statement on 1 March 2016 by Matt Hancock, the UK Cabinet Office Minister, that, “this government is committed to making government more transparent”.

Mr. Hancock was welcoming the report of the influential Independent Commission on Freedom of Information, which included Jack Straw and Michael Howard among its members. The Minister’s statement and the report itself came as an enormous relief to users of the Freedom of Information Act who had feared that the freedom of information was as much in the Government’s sights as the beleaguered Human Rights Act.

The Government has accepted two key points made by the Commission. First there should be no upfront fee for requesting information. This is very important for, as the Minister said, the introduction of a new fee would have led to a reduction in the ability of those requesting information to make use of the Act. The second point relates to the ministerial veto on the disclosure of information. Both the Minister and the Commission agree that the Act intended the executive to have the final say as to whether information should be released. One of the questions the Commission considered was when a veto should be exercised. Could it be exercised after the courts had considered the matter?

This question has to be considered against the scheme under the Act for appealing decisions on the release of information. If a request is refused the applicant can appeal to the Information Commissioner. There is a further general right of appeal to the First-tier Tribunal and from there a further right of appeal with permission on a point of law to the Upper Tribunal, the Court of Appeal and the Supreme Court. The Government now accepts, in line with the Commission’s thinking, that it will only deploy the Ministerial veto on the disclosure of information after a decision by the Information Commissioner on whether the disclosure is in the public interest. The Commission was clear that the most appropriate veto was one that applied at the Information Commissioner stage. If this is right it means in practice that the Government has a choice, if it thinks the Commissioner has got it wrong, it can either appeal against the Information Commissioner’s decision or veto the disclosure of the information. If the veto is used it can only be challenged by way of judicial review.

The Government’s new approach is in line with the decision of the Supreme Court in the case about the disclosure of letters written by the Prince of Wales to Ministers. In that case the Court, which allowed the letters to be disclosed, also pointed out that there is no room for a veto under the parallel rules which apply to the disclosure of environmental information.

Campaigners for Freedom of Information cannot however afford to relax. The Government has not revealed its hand in respect of some other recommendations which the Commission made.

One of the questions put to the Commission was whether public authorities have the necessary space to think in private without falling foul of a freedom of information request. One of the exemptions to the right to information is in respect of government policy (section 35 of the Act). Did this give government enough protection? The Commission said: “yes, the exemption has afforded a significant degree of protection for sensitive information held by central government”. The Commission also thought, that the exemption could be improved by adopting the wording of a similar exception in the rules relating to the disclosure of environmental information. Many in Whitehall still think that freedom of information has a chilling effect on the discussion of the development of government policy. It would not be a surprise if in the future the Government returned to the question of what is a safe space for developing policy.

The Government has also said nothing about the Commission’s proposal to remove the right of appeal to the First-tier Tribunal against decisions of the Information Commissioner made in respect of the Act. This would simplify the appeal process and is what happens under the Scottish Act, but the removal of the right of appeal should be resisted. The Information Commissioner sometimes gets the facts wrong. There should be an opportunity to put this right.

Still the government is now on record as being “committed to supporting the Freedom of Information Act”. The optimistic view is that it will perhaps also have second thoughts about replacing the Human Rights Act with a British Bill of Rights. The European Convention on Human Rights is a “British Bill of Rights”. The drafting of the convention was overseen by the Conservative Sir David Maxwell Fyfe. It is based on rights which have long been recognized and upheld by the common law in contradistinction to the right of freedom of information which is new statutory right. Which of these long established human rights can safely be thrown away? A British Bill of Rights is a good sound bite. Perhaps that is its proper role.

Featured image credit: How to make a baby (out of paper), by moppet65535. CC BY-SA 2.0 via Flickr.