Michael Gove, who was rebutted for using private emails to try to avoid the Freedom of Information Act in 2011, has planned to change the Act so it is easier for officials to block information from being published.

The now Justice Secretary has said that he will change the legislation so that officials can include their “thinking time” in decisions to refuse requests, the Financial Times is reporting.

Including thinking time could lead to a process that wouldn’t be “equal” a committee has previously said.

In reporting the story the FT says that changes will most likely be wider than including thinking time. The Campaign for Freedom of Information has called it a “two-pronged attached” on the transparency legislation.

The paper writes: 

“One plan is to make it easier for ministers to veto publication of certain documents, as they tried unsuccessfully to do with the recent release of letters written by Prince Charles to Labour ministers during the past decade.

“Another is to change the way the cost of finding information is calculated so that officials can more readily turn down requests.”

The implied changes to the Ministerial Veto are a direct result of the government losing the battle to publish a series of letters sent by Prince Charles to government ministers. The announcement also comes a week after it was shown Downing Street auto-deletes emails in a possible bid to avoid the scope of the Act. 

However, on the issue of “thinking time” being included in considering whether information can be released under the FOI scheme, a 2012 select committee which reviewed the Act, said this wouldn’t be feasible.

Officials can refuse to comply with a request when the time taken to work out it it, has the information, find it, retrieve it, or extract it, exceeds an appropriate limit. The limit for central government is £600 and for other authorities it is £450 – the cost is calculated out on a flat rate of £25 per hour.

“Developing a methodology whereby subjective activities such as reading and consideration time could be included in the 18 hour time limit does not seem to us to be a feasible proposition,” the Justice Select Committee said. 

“Such activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.”

The approach was also an unfavored one of a 2006 review of the Act which said it would be difficult to quantify a method to work this out.

“For consideration and consultation it is more difficult to identify a similar type of ready reckoner, as there is no standard metric to which a charge could be applied,” the review said. 

The government has considered weakening the FOI Act since it completed its 2012 post-legislative scrutiny of the Act. These planned changes have predominantly revolved around ministers wanting to remove the “burdens” of the FOI Act.

As we wrote back in 2013: “One option the government is considering blocking ‘industrial requests’ that are made by a person or group of people to the same authority. The suggestion has raised fears with campaigners that this may limit a local newspapers’ ability to hold an authority to account.”

Last year, outed Lib Dem justice minister Simon Hughes, said that there were some “small administrative” matters that the government wanted to change in the FOI Act.

Hughes previously said that there would be two government consultations of how the FOI Act should change. Neither of these consultations were ever publicly started and the FT’s latest story doesn’t refer to any consultations.

Dominic Raab – who is a large user of the FOI Act – was announced as Hughes’ replacement as the minister with FOI in their portfolio.

Featured image courtesy of Policy Exchange via Flickr / Creative Commons Licence 

I am a journalist and author. I am a journalist at the UK edition of WIRED magazine. In 2015, my first book Freedom of Information: A Practical Guide for UK Journalists, was published. My second book Reed Hastings: Building Netflix, was published in March 2020. I created FOI Directory in 2012 and have maintained it in my spare time ever since.