What is the FOI Act?
The Freedom of Information Act 2000 is a piece of legislation that gives people the āright to knowā. It places two distinct responsibilities upon the public authorities to which it applies. The first is to confirm whether they hold information, and, if they do, disclose it to the person who has asked for it, unless one of the Actās exemptions applies. The second requires the authority to make information available routinely, as part of a publication scheme.
Requesting information
Anyone, anywhere, is given the right to know by the Freedom of Information Act. People are given the right to be told whether a public authority holds information they ask for, under the duty to confirm or deny (FOI, s.1(1) (a)). If the public authority does have the information requested and it is not exempt, they have to give it to the person who has asked for it (s.1(1)(b)). As well as information that is exempt, authorities can refuse requests if the request costs too much to answer; the request is vexatious; or, quite simply, the authority does not hold the information. However, by law, the public authority has to reply to a request within 20 working days and explain its decision.
Publication schemes
When the Act was created, it also committed public authorities to publishing routine information on a regular basis. This was to be achieved in the form of publication schemes. These now are considered, by some, to be largely redundant due to the growth of the internet and the ease with which it allows information to be published.
However, the requirement for a publication scheme to comply with the Act has encouraged authorities to publish more information proactively. The Information Commissionerās Office (ICO) publishes a āmodel publication schemeā for all authorities, which details what should be published. Definition documents are then published by the ICO, which itemise the information that should be published to reflect the requirements of different public sectors. The model scheme can be āadopted without modificationā by an authority (ICO, 2013a, p.1). An authority can charge for the information it provides through its publication scheme. It can also charge for the photo-copying, postage and other costs directly incurred as a result of providing information (ICO, 2013a, pp.2ā3).
Model publication scheme
- Who and what: this includes organisation information, contacts and governance information.
- Spending: including details on budgets, contracts issued and more.
- Priorities: plans, assessments, inspections and more.
- Decisions: policy decisions and procedures.
- Policies and procedures: this includes the protocols for providing functions and responsibilities.
- Lists and registers: information held in registers required by the law and relating to functions of the authority.
- Services: advice, guidance, booklets and more that relate to the services that are offered by the public authority.
(ICO, 2013a, p.2)
How the Act came to be
The Freedom of Information Act emerged from a long battle to bring it to fruition. The Labour Party, which eventually introduced the Act in 2000, had the basis of a Freedom of Information Act within its election manifestos since 1974. The manifesto says the party would āput the burden on the public authorities to justify withholding informationā (Labour Party, 1974).
At the front of the pack demanding that politicians have the right to request and receive information was the Campaign for Freedom of Information, who were crucial in lobbying officials for more openness. The Campaign was launched in January 1984 (Campaign for Freedom of Information, 2009).
As the Act was proposed and developed, the latter during the late 1990s, it received backing from The Guardian, which ran its own media campaign to get it passed into law (Guardian, 1999a).
Yet, despite the growing calls, and some political support for an Act to be introduced, it took until 2005 for the first requests for information to be made under the law. This chapter looks at how the Act, as we know it today, came to be. There is not enough space in these pages to give a detailed history of the political swings and roundabouts encountered throughout the journey of the Act so it focuses on the final steps along the path to a new right to know, and how the right looks ten years later.
A brief history
- 1974: Labourās manifesto included a commitment to a future Freedom of Information Act, which appeared in the manifesto until the Act was implemented (UCL Constitution Unit, 2011).
- 1979ā1997: the Conservative Governments of Margaret Thatcher and John Major increased the openness and transparency that officials were subject to, which, arguably, helped to build the pressure on a desire for a Freedom of Information Act. They introduced the Data Protection Act, allowed access to environmental information and expanded local government access (UCL Constitution Unit, 2011).
- 1993ā1994: the Open Government White Paper introduced a Code of Practice on Access to Government Information, which allowed people to get information and says information should be āreadily availableā (Chancellor of the Duchy of Lancaster, 1993). Guardian journalist Rob Evans (2014) says it āwasnāt that strongā but it was still āuseableā. The Campaign for Freedom of Information (1993, p.1) says it was a āfoot in the doorā but āstops a long way short of delivering freedom of informationā.
- 1997: The White Paper Your Right to Know (Cabinet Office, 1997), which led to the shape of the Act that we see today, was published. It was a strong look at what FOI should be and the Campaign for Freedom of Information (1997) says it went āfurther than we had thought any British government would be willing to goā. It was subsequently watered down.
- December 1999: The draft Freedom of Information Bill was introduced to the House of Commons (UCL Constitution Unit, 2011).
- 2000: campaigners fought the government back on the draft billās scope reducing the 40 working day time to 20 working days, gave the ICO power to enforce compliance, and forced authorities to say why they were refusing information. These were all opposed by Jack Straw, who oversaw the billās passage through parliament (Guardian, 1999b).
- 1 December 2000: the bill completed its journey through parliament (UCL Constitution Unit, 2011).
- 2002: the Freedom of Information Act Scotland was passed.
- January 2005: the Freedom of Information Act became law in Britain.
The ICO
Defending and upholding the rights of an individualās ability to access information from public authorities is down to the ICO. The regulator has responsibility for overseeing a number of different information and privacy regulations. These are:
- Freedom of Information Act 2000.
- Data Protection Act 1998 (DPA).
- Privacy and Electronic Communications Regulations 2003 (PECR).
- Environmental Information Regulations 2004 (EIR).
- INSPIRE Regulations 2009.
(ICO, nd)
The ICO has jurisdiction over FOI and EIR in England, Wales, Northern Ireland and non-devolved authorities in Scotland. Otherwise, Scotland has its own FOI laws and ICO (nd), which are generally regarded as being more liberal and progressive.
The ICO (nd) was originally created in 1984 as the Data Protection Registrar. It went through a number of name and role changes until 2000, when the Office was given the responsibility of overseeing the Freedom of Information Act and formally became the ICO in 2001. The Office is headed up by the Information Commissioner (IC).
Since the inception of the Act in the UK, three Commissioners have served in the role. The first was Elizabeth France, who occupied the previous role before the creation of the ICO, retiring in 2002. Her successor was Richard Thomas, who oversaw the implementation of the Act during its early years, followed by Christopher Graham, who was appointed in 2009. Graham is due to serve in the role until June 2016, after he was re-appointed in early 2014 (ICO, 2014a).
In 2012, in an attempt to strengthen the independence of the Information Commissioner, the Protection of Freedoms Act changed these rules so that a future Commissioner will only be able to serve one seven-year term.
FOI responsibilities
The ICO employs around 400 people and currently has five locations around the UK. Its head office, where the majority of its staff are based, is in Wilmslow, in the North of England (ICO, 2014b, p.41).
The duties of the Information Commissioner, which are carried out by the Officeās staff, are listed in the Freedom of Information Act (2000) legislation:
- Promote good practice and ensure authorities comply with the Act and its codes of practice (s.47(1)).
- Give information and advice to the public about the Act, good practice and the Commissionerās powers (s.47(2)).
- Assess whether an authority is following good practice (s.47(3)).
- Recommend good practice to authorities (s.48) that the Commissioner believes are failing to comply with any of the codes of practice.
- Lay reports before Parliament, including the annual report of the Office (s.49).
The most relevant of the Commissionerās responsibilities for journalists and requesters is the duty to investigate complaints made to the Office about FOI requests. Section 50 of the Act requires the Commissioner to issue a Decision Notice (DN) about a complaint made by a requester. DNs tell authorities if they handled requests properly. The ICO has the ability to issue Information Notices (INs) under the Act (s.51) and Enforcement Notices (ENs) (s.52) to make resistant authorities fulfill their responsibilities under the law. Lawyers will represent the Commissioner if complaints are escalated to the tribunal stage and beyond.
Financial pressure
The ICO is a non-departmental public body that is funded by the Ministry of Justice (Justice Committee, 2009, p.4). Information Commissioner, Chris Graham (2014), says the funding that the Office receives is not adequate as it comes under an increasing strain.
The ICO submitted evidence to the Justice Committee in 2012, which says that the number of complaints, compared with the levels of funding, pose a āsignificant challengeā. Its evidence showed that the grant provided from the Ministry of Justice was Ā£5.1 million in the first year (2005/6) for FOI (ICO, 2012). The annual budget for 2013/14 showed the grant-in-aid received from the Ministry of Justice was Ā£4 million (ICO, 2014b). This means the authority struggles to properly enforce FOI.
If funding continues to be cut for the ICO, then there could be serious implications for citizensā access and right to information. Graham (2014) says: āI do think I need to speak out more loudly because over the past five years weāve put in place some changes that have made us infinitely more productive and infinitely more efficient but that canāt go on forever.ā
