The Freedom of Information Act (FOIA) came into full effect on
1st January, giving individuals for the first time a general right
of access to information held by public authorities in the course
of carrying out their public functions, subject to certain
conditions and exemptions.
One of these exemptions relates to legislation, in existence
prior to the passing of FOIA, which prohibits the disclosure of
information in some way.
In most cases, these prohibitions relate to personal or
commercially sensitive information, or information held in
fulfilment of an international obligation, which the Government is
bound to protect.
However, some information is being held back unnecessarily, and
the Department of Constitutional Affairs (DCA) has been conducting
a review of the legislation, to identify those enactments that
prohibit disclosure under FOIA but that do not fall within one of
four categories.
According to the DCA these are:
- Where the prohibition fulfils an international obligation;
- Where the information being protected may be held by a person
or an agency not covered by the FOIA;
- Where the information at issue has been compulsorily collected
by the public authority; or
- Where the prohibition is limited to specific types of
information, and some form of limited access scheme does
exist.
Enactments containing prohibitions that fall outside these
categories are subject to the Secretary of State’s powers to order
the repeal or amendment of the enactment, under FOIA.
The DCA published its “Review of Statutory Prohibitions on
Disclosure" last week, finding that 210 statutory provisions
prohibited the disclosure of information under the FOIA, and that
the Secretary of State had power to amend 183 of these. The review
did not consider the legislation in respect of Scottish public
authorities, which have their own FOI regime.
According to the review, 13 of the 183 provisions have already
been amended under the Freedom of Information (Removal and
Relaxation of Statutory Prohibitions on Disclosure of Information)
Order 2004, 40 will be amended, 19 will be time limited and another
111 will be retained or are still under review.
Of the 27 provisions that cannot be repealed or amended by the
Secretary of State, 20 relate to international confidentiality
obligations, and seven were passed after 30th November 2000 – the
date on which FOIA received Royal Assent – and cannot be amended
under the Act.
A further 238 provisions were considered for potential conflict
with FOIA, and ultimately deemed not to be in conflict – 116 of
these because they have already been repealed or amended by other
legislation.
