Freedom of Information review to consider balance between open government and "frank advice"

Former Treasury perm sec Lord Burns to review Freedom of Information laws and consider "safe space" argument, while Cabinet Office takes over responsibility for FOI from the Ministry of Justice

By matt.foster

17 Jul 2015

Ministers have launched an independent review of the Freedom of Information Act, with a cross-party commission asked to consider whether existing transparency laws allow "safe space" for "frank" discussion of government policy.

The act – brought in by the last Labour government and fully enacted in 2005 – grants access to some of the information held by public bodies about the work they carry out.

As well as obliging authorities to proactively publish certain types information, it allows the public to file their own requests, and has been used by journalists in stories including the 2009 MPs' expenses scandal.

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But a number of high profile public figures have questioned whether the act prevents officials and ministers from having honest discussions about policy, and Cabinet Office minister Lord Bridges on Friday announced that the new review would consider those concerns. Campaigners in favour of the act have already warned it could signal a "crackdown on FOI".

In a statement published this afternoon, Bridges said a new commission on Freedom of Information would be led by former Treasury permanent secretary Lord Burns, and would be asked to review the way the act is working.

"Our aim is to be as open as possible on the substance, consistent with ensuring that a private space is protected for frank advice," Bridges said. 

"To that end as a government we must maintain the best environment for policy-makers to think freely and offer frank advice to decision-makers. The most effective system is when policy makers can freely give advice, whilst citizens can shine a light into government.

"We fully support the Freedom of Information Act but after more than a decade in operation it is time that the process is reviewed, to make sure it’s working effectively. The government has therefore today established an independent, cross-party Commission on Freedom of Information."

According to its terms of reference, the inquiry will consider whether there is an "appropriate" balance between "transparency, accountability and the need for sensitive information to have robust protection", as well as whether the act allows  "‘safe space’ for policy development and implementation and frank advice".

The government says the Commission – whose membership includes former Conservative leader Lord Howard, former foreign secretary Lord Straw, Liberal Democrat peer Lord Carlile, and Ofcom chair Patricia Hodgson – "may also" look at whether there should be rethink of the "balance between the need to maintain public access to information, and the burden of the act on public authorities". 

The Cabinet Office's statement also confirms that responsibility for Freedom of Information policy has been moved from the Ministry of Justice to the Cabinet Office, with immediate effect.

'Civil servants can speak candidly'

Existing FOI legislation already includes a number of "absolute" and "qualified" exemptions limiting the material that must be released to the public, and section 35 of the act – a qualified exemption – is explicitly aimed at protecting the policy-making process.

Officials deciding whether or not to release documents must, according to MoJ guidance, 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".

But last month, justice secretary Michael Gove said he believed "safe space for policy advice" needed to be "asserted", as he called for a rethink of FOI. 

"It is absolutely vital that we ensure that the advice that civil servants give to ministers [...] is protected so that civil servants can speak candidly and offer advice in order to ensure that ministers do not make mistakes," he told MPs.

The Campaign for Freedom of Information has said it believes the only way to ensure civil servants' advice could not be disclosed would be by making Section 35 an absolute exemption. The campaign's director Maurice Frankel hit out at the new commission on Friday evening, arguing that current review process for FOI already offered sufficient protection of policy discussion.

"Ministers want certainty that policy discussions will not only take place in secret but be kept secret afterwards," he said.  "They don’t like the fact that the act requires the case for confidentiality to be weighed against the public interest in disclosure.

"The [Information] Commissioner and Tribunal give substantial weight to the need to protect ongoing government discussions and the frankness of future exchanges. But after a decision has been announced they sometimes order disclosure where exchanges are anodyne, the material is old or the case for openness is overwhelming. If that balancing test is removed mistakes, bad decisions and policy failures caused by deliberately ignoring the evidence will be concealed for 20 years."


Gove is not the first public figure to have voiced concern about the act. Tony Blair, the former prime minister whose government introduced the FOIA, later expressed regret at the decision, saying he felt he had been a "naive foolish, irresponsible nincompoop" to introduce the legislation, and claiming it had undermined "sensible government".

Former cabinet secretary Lord O'Donnell also said in 2011 that the requirement to release Cabinet minutes risked inhibiting "real discussions" between ministers.

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