Freedom of Information in danger of ‘sliding into obsolescence’, new report finds
Exclusive: New report from transparency charity calls for FOI overhaul, with new regulatory powers given to Parliament
The Freedom of Information Act risks “sliding into obsolescence” without urgent reforms, according to a new report seen by openDemocracy.
A report published by transparency charity mySociety on Wednesday recommends sweeping changes to the regulation of Freedom of Information (FOI), and calls for FOI legislation to be extended to private providers of public services.
The British government’s handling of FOI has been heavily criticised. Last year openDemocracy revealed that an ‘Orwellian’ Cabinet Office ‘Clearing House’ unit was vetting information requests.
Freedom of Information is regulated by the Information Commissioner’s Office (ICO), which has powers over both FOI and data protection.
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MySociety, which runs a number of transparency projects including the FOI site WhatDoTheyKnow.com, calls for the ICO’s data protection and access to information functions to be split into two offices and for responsibility for the regulator to be given to Parliament rather than a government department.
The ICO’s data protection and FOI portfolios are on “divergent paths”, according to the ‘Reforming Freedom of Information’ report.
FOI makes up a small part of the ICO, the report adds, and “suffers for being funded through a government department”, and is “increasingly out of alignment with the main goals of the organisation”.
The report’s author, Alex Parsons, said it was a “worrying time” for FOI in the UK.
“The law has survived several crises, and when it is threatened, civil society rallies to defend it. But this just means the end of FOI will be a slow erosion rather than a big event,” Parsons said.
“To survive, FOI can't remain static but needs to be adapted to the new circumstances of our times.”
FOI 'suffers for being funded through a government department'
Jon Baines, an information rights expert at the law firm Mishcon de Reya, welcomed the proposal to separate the ICO’s access information recommendation: “My impression – supported by the evidence – is that in recent years FOI has been given decreasing attention by the ICO, and having a dedicated office dealing with it would be a good opportunity for a revived focus."
The Campaign for FOI’s Maurice Frankel said: “If FOI is not to wither on the vine, it needs more robust protection - and that must start with the ICO.”
Concerns about the operation of FOI have been growing. Conservative MP David Davis last week called for the Clearing House to be “abolished”.
The British government has maintained that it “takes its obligations under the Freedom of Information Act and Data Protection Act seriously, and routinely discloses information beyond the requirements under the Freedom of Information Act”.
But a recent openDemocracy report, ‘Art of Darkness’ found that over the past ten years the ICO’s FOI budget has been cut by 41% in real terms while its complaint caseload has increased by 46%.
mySociety has also called for the UK government to include social registered landlords and housing associations within the FOI Act, which would increase transparency over how public services are delivered.
The ICO has previously said that the FOI Act should be extended to private contractors –yet the government has rejected demands for legislative reform.
The Labour Party has also called for the FOI Act to be extended to all new public service contracts delivered by private companies.
There have also been calls for the UK government to extend the FOI Act to Advanced Research and Invention Agency (ARIA) – a new £800m defence research agency. An amendment to make the agency subject to the act was defeated.
MySociety’s report also proposes that when FOI requests are not answered within 20 working days, they should be considered refused so that the requester can quickly engage in the appeals process.
Over the past ten years the ICO’s FOI budget has been cut by 41% in real terms while its caseload has increased by 46%
When a FOI request is ignored – known as “stonewalling” or “administrative silence” – the requester is left in a “legal limbo around the standard review process”. The number of ICO rulings about stonewalling has increased by 70% since 2016, according to openDemocracy’s recent analysis.
mySociety has also recommended that FOI legislation needs to include an explicit time limit for internal reviews – the first stage of challenging rejected FOI requests. Only 57% of internal reviews received by central government departments and agencies were completed within 20 working days, according to openDemocracy analysis.
Currently, there is no statutory time limit for internal reviews. “Statutory time limits are arguably key to the effectiveness of any FOI legislation – otherwise requesters can be left high and dry when it comes to vindicating their rights of access,” said Gavin Sheridan, co-founder of Right to Know.
When the government delayed a response to an openDemocracy request to obtain lists circulated by the Clearing House, the ICO said there was “simply no justifiable reason” for the Cabinet Office to have “taken nearly eight months to carry out the internal review”.
mySociety’s report also highlights the lack of FOI data. The Office of the Scottish Information Commissioner collects statistics on how requests were received and processed by authorities. Yet in the rest of the UK, this is limited to central government departments and large public authorities rarely publish their own statistics.
“The majority of FOI requests made to public authorities in the UK are not covered by public statistics, making the regulator (and the interested public) blind to trends over time, and less able to understand whether FOI is functioning well or not. We recommend the ICO act as the hosts of a central repository,” the report states.
The Campaign for FOI’s Maurice Frankel said that “improvements were urgently needed”.
“FOI has long been the poor relative of Data Protection at the ICO, partly because of severe funding cuts. Some of the ICO’s ‘information rights’ policies are obvious data protection policies with FOI tacked on. UK public authorities have discovered that a breach of FOI carries no penalty other than a requirement to comply many months or even years later, with no sanction for repeat offenders. To its credit the ICO did launch a tougher enforcement policy in late 2018 but it was withdrawn when the pandemic struck and has not resurfaced.”
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