Openness threatened by ‘decluttering’

Could there be an assault on freedom of information now that there is no coalition partner to hold back the Conservative party?

In March 2012, giving evidence to a select committee, David Cameron said that FoI was ‘furring up the arteries’ of government. More recently, speaking to the Times newspaper, he said: ‘I wish we’d spent more time in opposition thinking about how to declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FoI [the Freedom of Information Act requests] … Just generally, if you want to do something, build a road, start a new college, launch a programme to encourage people to build more houses – it takes a bloody long time.’

In July, the Commission on Freedom of Information was established by the cabinet office (which now has responsibility for FoI). Its terms of reference are: ‘[To] review the Freedom of Information Act 2000 (“the Act”) to consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a “safe space” for policy development and implementation and frank advice.

‘The commission may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.’

The commission will be chaired by Lord Burns, and will comprise the Rt Hon Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson. The motivation/credentials of the panel members have been questioned by some who argue that they are establishment figures who are not interested in openness or transparency. Jack Straw, in particular, has previously called for FoI to be rewritten.

The commission’s recently published consultation paper does suggest that it is considering sweeping restrictions to the legislation. It will publish its findings by the end of November, but here are my predictions.

Strengthening the ministerial veto under section 53 is, in betting parlance, a ‘dead cert’.

In March the Guardian’s successful challenge to the application of the veto to the disclosure of Prince Charles’ letters to government departments was confirmed by the Supreme Court. Hours before publication of the letters, Downing Street said David Cameron would to try to build up a cross-party consensus with the aim of guaranteeing that ministers will be able to veto the publication of documents under FoI requests in exceptional circumstances.

It is also likely that the FoI fees regulations will be amended to make it easier to refuse requests for information on costs grounds. In July 2012 the Justice Select Committee published its Report into Post-Legislative Scrutiny of the Freedom of Information Act 2000. The committee concluded that FoI was working well. It had ‘contributed to a culture of greater openness across public authorities, particularly at central government level’ and ‘is a significant enhancement to our democracy… it gives the public, the media and other parties a right to access information about the way public institutions… are governed’.

The government published its official response to the Justice Select Committee’s report in December 2012. The Committee recommended that consideration be given to reducing the amount of time an authority needs to take in searching for and compiling information:

‘We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the government would want to carry out further work on how this would affect the number of requests rejected.’

The government, in its response, said that it doubts that much will be achieved through the reduction of the costs limit. However, it was in favour of allowing additional factors to be taken into account in deciding whether the 18-hour limit has been reached:

‘The government does not share the assessment of the committee that it is unfeasible to develop an objective and fair methodology for calculating the cost limit which includes further time spent dealing with information in response to a request. As such, the government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.’

So while the committee rejected the suggestion that reading, consideration and redaction time should also be taken into account when deciding whether the 18-hour limit has been reached, it could be that the fees regulations are amended to allow this.

At present the costs of different FoI requests can be aggregated only where the requests relate to the same or similar information. The government may change this to make it even easier to aggregate costs. At paragraph 19 of its response, it stated: ‘We will also look at addressing where one person or group of people’s use of FoIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.’

Other matters on the table for discussion in the consultation paper include imposing charges for requests, making it more difficult to obtain public authorities’ internal discussions (or excluding some from access altogether) and changing the way FoI is enforced.

The case for strengthening the act does not seem to be on the commission’s agenda. The Campaign for Freedom of Information is co-ordinating the campaign against restrictions to FoI. Over 140 media bodies, campaign groups and others have written to the prime minister expressing concern about the commission’s composition and terms of reference.

In a separate move, the consultation paper and the impact assessment on tribunal fees were published last month on the Ministry of Justice website. The deadline for responses ended on 15 September. In future it could cost £100 to appeal, against an Information Commissioner Decision Notice, to the First Tier Tribunal (Information Rights) or the Upper Tribunal (if the case is transferred), and £500 for an oral hearing.

Tribunal fees will have a big impact on the number of challenges to public authority decisions. Overworked FoI Officers may initially see cause for celebration. However, if fewer appeals are heard, the quality of FoI caselaw on important matters of interpretation will suffer. Consequently application of the FoI exemptions, as well as other provisions, will become more difficult.

Ibrahim Hasan is a solicitor and director of Act Now Training (www.actnow.org.uk)