Freedom of Information review: ministers reject charging for requests – but commission recommends tightening of rules around policy formulation

Burns Commission on Freedom of Information sides against charges for FOI requests, but calls for greater clarity on protecting policy-making

By matt.foster

01 Mar 2016

The government will not introduce charges for Freedom of Information requests, ministers have confirmed, as a controversial review of the transparency law concluded that there was "no evidence" it should be "radically altered" – but called for more clarity of the rules protecting policy-making.

Transparency campaigners and media organisations had feared that the FOI act – introduced in 2000 to give the public access to information held by public bodies – would be watered down in the review commissioned by ministers last year, and led by former Treasury permanent secretary Lord Burns.

However, the Burns Commission's report – published on Tuesday – says FOI is "generally working well" and has been "one of a number of measures that have helped to change the culture of the public sector".

Freedom of Information: Civil servants would support charging for requests, CSW study finds
Lord Kerslake steps up defence of Freedom of Information – and rejects "chilling effect" claims

The review looked into several key areas, including whether the existing rules allow enough room for internal policy discussion in government; whether Cabinet discussions are protected; whether the act imposes too much of a burden on public bodies; and whether ministers should have a final veto over the release of information.

Although the Commission proposes greater clarification of the rules protecting policy discussions and the right of ministers to veto releases, it sides against introducing up-front charges and instead identifies a number of areas where it believes "the right of access should be increased".

That includes a call for a 20-day limit in which public bodies must carry out the internal reviews triggered when a requester challenges a decision not to release information.

More public authorities should also be scrutinised for their compliance with the act, the commission recommends, saying that all bodies with "at least 100 full-time equivalent staff" should be required to publish a regular breakdown of their responses.

The commission also calls for the prosecution powers of the Information Commissioner – the watchdog overseeing compliance with FOI – to be "strengthened", saying the IC should be given greater powers to punish bodies that destroy information after it has been requested. It meanwhile calls for a review of the IC's resources, saying the government must "ensure that they are adequate for him to carry out his duties under the Act effectively".

"Safe space"

The commission does, however, call for changes to the section 35 of the act, which is aimed at protecting the policy-making process. A number of senior figures in government have expressed concern that the Act in its current form has a "chilling effect" on policy-making.

Under current rules, officials deciding whether or not to release documents must weigh the "important public interest in disclosure of information about the process of government policy formulation" against the "powerful public interest in ensuring that there is a space within which ministers and officials are able to discuss policy options and delivery, freely and frankly". 

The commission says section 35 should be redrafted "so that it is clear that the need for safe space is not diminished simply because a decision has been taken" and says the guidance should make clear "the need to protect collective cabinet responsibility, and the need to protect frank exchanges of views or advice for the purposes of deliberation".

And it says the government "should legislate to put beyond doubt that it has the power to exercise a veto" over the release of information, saying the Act "did intend the executive to have the last word when it came to whether information should be released". 

The use of that veto came under scrutiny when the Guardian newspaper successfully fought for the release of correspondence between ministers and Prince Charles.

The commission says that the outcome of that legal battle "means that there are serious doubts that the veto can be exercised as parliament intended", recommending: "the correct course of action is for the legislation to clarify beyond doubt that the executive has the ability to exercise a veto in those cases where it considers it appropriate.

It adds: "Aside from the intention of parliament, the executive is trusted with responsibility for national security, defence and international relations, and is in a unique position to assess the wider public interest, and is directly accountable to parliament and the electorate in a way that others are not."

However, responding to the commission's report, Cabinet Office minister Matt Hancock stopped short of pledging to change the law on ministers' ability to block releases, saying:

"The government agrees with the commission’s analysis that parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage."

“This is a remarkable government climbdown in the face of sustained pressure from the opposition parties, the third sector and the media" – Labour's Tom Watson

The minister also said he agreed that it was "not appropriate to introduce fees for requests", and promised revised guidance for public bodies to help them comply with the act.

He also backed the commission's call for "increased transparency concerning senior public sector executives in relation to expenses and benefits in kind", and promised "further steps" 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."

Shadow cabinet office minister Tom Watson – who launched his own review of FOI for the Labour party, taking evidence from figures including former head of the civil service Lord Kerslake – said the outcome of the review represented a u-turn.

“This is a remarkable government climbdown in the face of sustained pressure from the opposition parties, the third sector and the media," he said.

A spokesperson for the Information Commissioner Christopher Graham said there appeared to be "much to welcome" in the final report, although he said the ICO would "study the 21 recommendations in detail".

He added: “We welcome the fact that the Commission has adopted some of the ideas put forward by the Information Commissioner in evidence, particularly his call to also consider improvements to the Act - such as clarifying the extension to the time limit, and also the Commission's call for strengthened powers and better resourcing for the ICO.”


Read the most recent articles written by matt.foster - Top civil servants Robert Devereux & Chris Wormald stick up for spads

Share this page