What changes will the post-legislative scrutiny of the Freedom of Information Act bring? Ibrahim Hasan considers the most likely recommendations. 

Last year the Justice Select Committee, chaired by Sir Alan Beith, launched a call for written evidence for its post-legislative scrutiny of the Freedom of Information Act 2000 (FOI). The Committee invited written evidence on the following issues (although those responding were free to discuss other matters):

• Does the Freedom of Information Act work effectively?
• What are the strengths and weaknesses of the Freedom of Information Act?
• Is the Freedom of Information Act operating in the way that it was intended to?

The Committee has now finished hearing oral evidence. Its website contains more details including dates of hearings as well as uncorrected transcripts of evidence. Whilst much has been written and submitted to the Committee about what changes the Government should make to the FOI regime, some changes are more likely to be recommended by it than others:

1. A new exemption for frivolous requests

The Information Commissioner’s Office (ICO) has told the Committee (and the Solicitors in Local Government Weekend School) that it would be in favour of an exemption being introduced to alleviate the burden of frivolous requests e.g. for zombie invasion plans. 

My view is that this is a sacrificial lamb being offered by the ICO to try and deflect some of the recent criticism directed towards it. Public authorities have claimed that the ICO is not doing enough to help them at a time when they are being inundated with nuisance requests that clearly have no purpose or value. However the Committee may feel it needs to go further to address such concerns.

2. A change to the costs regime

Many of those that have responded to the Committee’s call for evidence, have expressed concern about the sheer cost of dealing with FOI requests, although the basis of calculation of some of the figures seem highly dubious. It is likely that changes are made to allow more activities to be included as part of the costs limit of £450/£600 limit (under the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004) including perhaps the time it takes to redact exempt information from a document before disclosing the latter.

It seems that the Government is already pre judging the outcome of the Committee’s report. According to a BBC Newsnight report on 5 April 2012, a new fees regime could be introduced to reduce the number of FOI requests. Different tariffs could be used to charge different types of requestors. For more on this read Jonathan Baines excellent guest post for the Save FOI Blog.

3. A new Cabinet minutes exemption

The previous Government has on two occasions used the ministerial veto (under section 53) to exempt disclosure of cabinet minutes. On 24 February 2009 the then Lord Chancellor, Jack Straw, issued the first ever ministerial veto (See Cabinet Office and Christopher Lamb v IC (EA/2008/0024 & 0029)) when the Tribunal decided to uphold the ruling by the Information Commissioner that minutes of cabinet meetings from 2003 discussing the Iraq War should be disclosed. On 10 December 2009, Mr Straw did the same again in respect of a decision of the Commissioner (Cabinet Office FS50100665) requiring disclosure of minutes of the Cabinet Ministerial Committee on devolution to Scotland and Wales and the English Regions in 1997.

Dominic Grieve, the Attorney General, also used the veto to block release of Cabinet Minutes relating to Scottish and Welsh Devolution. Recently the Health Secretary, Andrew Lansley, caused controversy when he used the veto to block access to the NHS Risk Register. On each occasion the veto has been used, the Commissioner has issued a report to Parliament expressing disappointment. However recently he has said that if the Government feels strongly about Cabinet Minutes being kept secret then an absolute exemption should be introduced. Bearing in mind what the Prime Minister and Lord O’Donnell (the former head of the civil service) have said about FOI recently, this is a strong possibility.

4. Other possible changes

Looking at the various submissions to the Committee, especially those from the ICO, it is also likely that statutory limits for Internal Reviews and the public interest test are recommended to avoid delays in dealing with requests. It may also be recommended that now FOI has bedded in, the role of the Qualified Person (under section 36) be removed so that there is no delay in Refusal Notices being issued where this exemption is claimed.

The Committee is due to report before the Summer Recess of Parliament.

Ibrahim Hasan is a solicitor and director of Act Now Training.

Watch a range of courses presented by Ibrahim on Local Government Law TV.