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UK government steps back from major reforms to FOI laws

The UK government has stepped back from making major changes to freedom of information (FOI) laws after the publication of an independent report it had commissioned into the FOI regime.01 Mar 2016

The Independent Commission on Freedom of Information, appointed by the government last summer to review the FOI framework to mark 10 years since the Freedom of Information Act (FOIA) came into force, said that FOIA is "generally working well" (64-page / 681KB PDF).

Cabinet Office minister Matt Hancock said the government supported the view expressed by the Commission that public bodies should generally not be able to impose charges for handling FOI requests.

In a statement to parliament Hancock said: "The government agrees with the Commission’s view that it is not appropriate to introduce fees for requests, over and above the existing narrow circumstances in which a requestor can be currently charged for disbursement costs."

"We appreciate that some public authorities are concerned by the burdens imposed on them by the Act and the associated costs. However, the introduction of new fees would lead to a reduction in the ability of requesters, especially the media, to make use of the Act. We believe that transparency can help save taxpayers’ money, by driving out waste and inefficiency," he said.

Hancock said, though, that new guidance would be issued to help public authorities deal with vexatious requests for information.

"The Commission recognises the difficulty that genuinely ‘vexatious’ requests can place on public authorities," the minister said. "We agree with the recommendation of improved guidance, via a revised code of practice, to allow public authorities to [rely on FOIA provisions for refusing to deal with FOI requests that are vexatious] in the rare cases where it is necessary and appropriate."

Information law expert Kathryn Wynn of Pinsent Masons, the law firm behind Out-Law.com, said that public bodies are sometimes overburdened by vexatious or repeated requests for information. However, she said that the threshold is currently set too high for many authorities to feel that they are able to rely on the provisions on vexatious requests within FOIA as a justification for refusing to handle such requests, given the repercussions if they make a wrong judgement call. These can include potentially damaging their relationship with the requester and/or risk giving the Information Commissioner's Office (ICO) the impression that they are not fully complying with their FOIA obligations, she said.

"Greater clarity on when the provisions on vexatious and repeated requests can be applied would be welcomed by public bodies," Wynn said. "We have seen examples recently where authorities have been burdened by a disproportionate volume of information requests in a clear attempt to disrupt everyday operations or to raise personal grievances against that body. However, compiling the evidence necessary to demonstrate that individual requests made are part of a wider campaign and constitute vexatious or repeated requests for information can be difficult."

"It would be useful for public bodies if they were able to point to evidence of repeated requests by the same individual or related requests from a small group of individuals, without having to evidence the link between the requests or the individuals," she said.

Public bodies will in future be required to publish more information about the "expenses and benefits in kind" paid to senior staff, Hancock said. The Commission recommended that public bodies be required "to publish in their annual statement of accounts a breakdown of the benefits in kind and expenses of senior employees by reference to clear categories".

Hancock said: "The Commission recognises the advances that have been made to increase transparency about senior executives’ pay and benefits. Further steps will be taken to ensure this transparency is delivered across the whole public sector. The default position should be that such information from all public bodies is published; that the public should not have to resort to making freedom of information requests to obtain it, and data protection rules should not be used as an excuse to hide the taxpayer-funded payments to such senior public sector executives."

"We will now consider what additional steps should be taken to address any gaps in published information, and in particular in relation to expenses and benefits in kind as recommended, including more broadly than at present," he said.

In its report the Commission made a number of recommendations in relation to when the government should exercise its right to veto the disclosure of information under the FOI regime, including making changes in legislation. Hancock said that the government would not amend FOIA in this respect but would in future "only deploy the veto after an information commissioner decision" in an appeal ruling.

The Commission called on the government to legislate to allow public bodies to extend the timeframe they need to operate within for responding to FOI requests to 40 working days in some cases. It said the time limit extension should only apply where the authority "reasonably believes that it will be impracticable to respond to the request" within the current statutory 20 working day timeframe for response "because of the complexity or volume of the requested information, or the need to consult third parties who may be affected by the release of the requested information".

Hancock said the government would "carefully consider" the recommendation.