Freedom of Information

What is Freedom of Information?

A commitment to "Freedom of Information" is a political principle which asserts that members of the public have a right to know what the state is doing, and what it knows about them.

In practice around the world, this has usually meant a statutory right on the part of the public to see certain types of recorded information held by public authorities. This right to know has existed in Sweden since the 18th century, in the USA since 1966, in France since 1978, in Canada, Australia and New Zealand since 1982 and in the Netherlands since 1991. In the UK, freedom of information is given statutory force by the Freedom of Information Act 2000.

However, the Act did not come fully into force until January 2005. The Act has required public bodies to adopt "publication schemes", which state what, when and how these bodies will make various types of information available (and what charging arrangements they have for access). What types of information should be included in publication schemes are not specified in the Act, and are decided by the public bodies and the Information Commissioner - the regime's regulator.

From January 1, 2005, a new right to request information came into force under the Act. Any person making a request in writing to a public authority for information must, firstly, be told whether the authority holds that information, and secondly, provided with that information unless it is excluded from the right's scope under one of a number of exemptions. Exempt information need not be disclosed by the authority.

The Act includes 23 separate Sections of exemptions, which fall into two categories: "class" exemptions, which disqualify all information of a certain type from the disclosure regime; and types of information which may be exempt subject to a "prejudice" test.

Class exemptions include court records, any material relating to actual or potential criminal investigations, material relating to audits and national security. More controversially, they also cover material relating to government policy formulation (including the background information on which decisions were based) and anything else which "would in the reasonable opinion of a qualified person be likely to prejudice the effect conduct of public affairs" - something again left undefined in the Act.

Other types of information are exempt if disclosure would or would be likely to prejudice certain interests named in the Act.

The Information Commissioner has powers to override a refusal to publish information in the "public interest", by issuing an enforcement notice, following an appeal by the party whose request was refused. However, there is also provision for a "Ministerial veto", whereby the Information Commissioner's notice can be overridden, in respect of requests relating to central Government departments and the Welsh National Assembly, by a certificate signed by a Cabinet Minister, or the Welsh or Northern Irish First Minister.

The Ministerial veto, however, only applies to "public interest" notices - it does not apply in cases where the Information Commissioner has ordered disclosure on the grounds of misapplication of the exemptions or the prejudice test.

Responsibility for freedom of information today rests with the Ministry of Justice.

Background

The British state has a long tradition of secrecy and unwillingness to publish information regarding its workings. Indeed, until it was reformed in 1989, Section 2 of the Official Secrets Act 1911 made it a criminal offence for any civil servant or public contractor to reveal any information he or she had learned in the course of his or her work: an offence that successive governments continued to prosecute well into the 1980s, despite recommendations published in 1972 by the Franks Committee calling for reform.

The Labour Party first pledged itself to a Freedom of Information Act in its 1974 election manifesto, but the precarious positions of the Wilson and Callaghan governments made progress impossible. Between then and 1997, the cause of freedom of information was largely pursued by means of Private Member's Bills.

A Private Member's Bill introduced in 1978 by Liberal MP Clement Freud attracted considerable support, but fell at the 1979 election. The Conservative government opposed similar Bills introduced in 1981 and 1984.

1984 also saw the introduction of the Data Protection Act 1984, which gave members of the public the right to see computerised records about themselves, and the Bill which subsequently became the Local Government (Access to Information) Act 1985, which required meetings of local authorities and associated documents to be open to the public.

In 1987, Archy Kirkwood's Access to Personal Files Act was passed, giving the public access to manually held social work and housing records, which was followed by the Liberal MP's Access to Medical Reports Act in 1988, Chris Smith MP's Environment and Safety Information Act, giving the public access to environmental enforcement notices, and Doug Henderson MP's Access of Health Records Act 1990. However, a general freedom of information bill, introduced by Mr Kirkwood was talked out in 1991.

In 1992, Labour published its Right to Information Bill: shadow home secretary Roy Hattersley promised that it would be the first piece of legislation introduced by a new Labour government. The Conservatives resisted legislation, but promised greater openness, appointing William Waldegrave as minister responsible for increasing transparency.

Following the talking out of Mark Fisher's Right to Know Bill in 1992, in 1993 the Government published its White Paper "Open Government". This proposed the Code of Practice on Access to Government Information, a non-statutory code regulated by the Parliamentary Ombudsman. Although the code provided wide exemptions for disclosure and the Ombudsman's rulings were non-binding, governments complied with them in every instance until 2001. The code came into force in 1994, and was followed by a parallel Code for the NHS in 1995.

At the 1997 general election, both Labour and the Liberal Democrats promised freedom of information laws. The Conservatives resisted this, but promised further implementation of the proposals from "Open Government".

On Labour's election, Chancellor for the Duchy of Lancaster David Clark promised a new White Paper before legislation, which was delayed from July to December that year. "Your Right to Know" proposed a strong freedom of information regime which attracted widespread support, but the Government promised only to publish a draft Bill in 1998 - which in turn was delayed until May 1999.

The Bill that eventually emerged, introduced in December 1999, was considerably weaker than the "Your Right to Know" proposals. It took a year to steer through Parliament, receiving Royal Assent in December 2000.

Controversies

Many proponents of freedom of information regard the 2000 Act as a major disappointment. In publishing its draft Bill in 1999, the Labour Government retreated considerably from the "Your Right to Know" proposals. Most significantly, the notion that most forms of information could only be withheld on the grounds that "substantial harm" would be caused was removed. Many put this down to the transfer of responsibility for freedom of information from the Cabinet Office to the Home Office, and the realisation of other departments of the implications of Dr Clark's proposals.

The range of exemptions proposed and the breadth of grounds on which information might be withheld caused considerable controversy during consultations and the passage of the Bill. While the Labour Government made some concessions to their opponents, it did not give ground on the key principles.

However, the Coalition government elected in May 2010 accused Labour of having presided over "the most aggressive period of state interference in this country in a generation", typified by such things as ID Cards, the creation of a huge DNA database, and the amassing of thousands of new criminal offences on to the statute book.

In a powerful speech in January 2011 the Deputy Prime Minister, Nick Clegg, pledged that the new Government would "restore the hard-won liberties that we in Britain hold so dear" and which under Labour had been "undermined, eroded, lost".

This includes ensuring greater access to information via the Freedom of Information Act, making it easier for people to obtain the information they need. Also extending the scope of the Act to cover potentially hundreds more bodies, including UCAS, the Association of Chief Police Officers, the Financial Ombudsman Service and many more. In addition, the 30 year rule under which sensitive Government records can be kept secret for 30 years, will be reduced by a decade to 20 years.

In November 2011, the Ministry of Justice confirmed that an order had come into effect bringing the university admissions body UCAS, the FOS and ACPO under the scope of the FoI on the basis that they all perform functions of a public nature.

Statistics

Statistics on handling of requests for information under the Freedom of Information Act by 43 central government bodies, including all major departments of state. Q3 - 2011

Number of requests:

Across all the monitored bodies covered in these statistics, a total of 11,829 “non-routine” information requests were received during the third quarter (July to September) of 2011 (Q3) – an increase of 4 per cent on the third quarter of 2010.
Although there has been considerable quarter-on-quarter variation, there has been a generally increasing trend in the number of requests received by the monitored bodies over the past three years. Some 96 per cent of the requests received during Q3 had been processed at the time of monitoring.
Departments of State reported receiving 7,738 “non-routine” information requests during Q3, an increase of 7 per cent on the corresponding quarter of the previous year. Other monitored bodies received 4,091 requests, which is almost unchanged when compared to the third quarter of 2010.
Of this total of 11,829 requests, 351 were handled under the amended Environmental Information Regulations which came into force on 1 January 2005.

Timeliness of response to requests:

During Q3 of 2011, 93 per cent of all monitored bodies’ requests (excluding those “on hold” or lapsed) were “in time”, in that they were processed within the statutory deadline or were subject to a permitted deadline extension. This is an increase on both the 90 per cent in Q2 2011 and the 92 per cent from Q3 2010, and reverses the slight drop in the first two quarters in 2011.
Although the standard statutory deadline for response to a Freedom of Information request is 20 working days, a 30 working day deadline applies where requests relate wholly or partly to information transferred to the National Archives, which has provided response timeliness information on this basis.

Initial outcomes of requests:

Of all “resolvable” requests received during Q3 of 2011 (i.e. requests where it was possible to make a substantive decision on whether to release the information being sought), 56 per cent were granted in full. The proportion of requests granted in full has generally followed a flat trend over the last two years.

Source: Ministry of Justice – March 2012
 

Quotes

"We will extend the scope of the Freedom of Information Act to provide greater transparency."

The Coalition: Our programme for government
 

"The Freedom of Information Act was a good start, but it was only a start. Exceptions remain far too common. And the available information is too often placed behind tedious bureaucratic hurdles..
"We still live in a society where important information is hoarded by the few. And, as we know, information is knowledge, and knowledge is power..
"The Government is going to transform the access citizens have to the information we believe is their right."

Deputy Prime Minister, Nick Clegg: 'Restoring British Liberties' speech - January 2011

"Transparency is the foundation of accountability. If we want people to play a bigger role in our society and be able to hold government – at whatever level – to account we need to give them the tools and information to do so."

Justice minister Lord McNally: speech to Westminster Legal Policy Forum – October 2011