The government has announced a review on the Freedom of Information Act and transferred responsibility for the Act to the Cabinet Office.
A new commission will look at the Act’s scope and see whether the public interest in disclosing information is “appropriate,” a statement made by Cabinet Office parliamentary secretary Lord Bridges.
The review, which is made up of a number of officials – from different backgrounds – will report its findings by November.
The announcement follows Justice Minister Michael Gove making comments that he wants to “revisit” the FOI Act and strengthen the legislation to ensure advice given to ministers is protected.
MP Matt Hancock, who works in the Cabinet Office, was at the launch of the Government’s transparency action plan earlier this week where he failed to mention anything about the FOI Act.
However, the new comments from Hancock’s Cabinet Office colleague said that the Office, which is heavily criticised by FOI users, will now be responsible for FOI. Previously the Ministry of Justice was responsible for FOI.
It is highly likely that the Commission will look at areas that may limit the amount of information which is published under the transparent legislation. These include looking at the Section 35 and Section 36 exemptions which, if strengthened, would mean the publishing of policy information will not be possible.
“The Commission will review the Freedom of Information Act 2000 (‘the Act’) to consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice,” the statement on the Government’s website says.
“The Commission may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.”
Campaigners have said the formation of the commission marks the start of a “crackdown” on the transparency legislation.
“The government is clearly proposing to crack down on FOI. Ministers want certainty that policy discussions will not only take place in secret but be kept secret afterwards. They don’t like the fact that the Act requires the case for confidentiality to be weighed against the public interest in disclosure,” said Maurice Frankel, the Director of the Campaign for Freedom of Information.
“The 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.”
The Commission will be chaired by Lord Burns, and will comprise the Rt Hon Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson.
The Information Commissioner’s Office has responded to the announcement by saying that it believes FOI is “fit for purpose”.
An unnammed ICO spokesperson said: “We will be happy to share with the commission our experiences from a decade of regulating this Act.
“As we have said in the past, the Freedom of Information Act has opened up the corridors of power to greater scrutiny, and government, at all levels, is better for it.
“The Act is not without its critics, but in providing a largely free and universal right of access to information, subject to legitimate exceptions, we believe the freedom of information regime is fit for purpose.”