In July 2015, the Independent Commission on Freedom of Information was asked to look into the operation of the Freedom of Information Act, ostensibly to determine whether it struck the right balance between openness and accountability and a “safe space” for policy development. Many transparency campaigners feared that the act would be undermined, that new restrictions would be imposed, and that such a loss to accountability would certainly not be in the public interest. Organisations from across the political spectrum, journalists and campaign groups joined to sign an open letter voicing their concerns. Today’s final report from The Commission and the government’s provisional reaction to the findings go quite some way to reassure many that The Act will not be substantively watered down. Of course, we at the TaxPayers’ Alliance will continue to argue that if anything it should be expanded.
However, we do have substantial concerns over the restrictions on appeals to decisions made by the Information Commissioner. Previously, rulings could be challenged at First-tier Tribunal allowing members of the public to challenge decisions without needing the help of a lawyer. Restricting these appeals to points of law is a big change, and one which may prove damaging. It would no longer be possible to challenge a ruling over the application of a public interest test. Given the number of times we at the TaxPayers’ Alliance have had requests refused citing data protection act concerns, an exemption qualified by a public interest test, it is alarming to hear that decisions made by the Information Commissioner in these cases could not be challenged.
The calls for restrictions from certain interest groups were loud, and that The Commission had not been swayed is positive. Universities and their umbrella organisations were particularly vocal, arguing that the requirement to comply with the act damaged their ability to act within a market place. Working alongside the Daily Mail, the TaxPayers’ Alliance recently published the Education Rich List, as part of the largest freedom of information campaign ever undertaken in the UK, and the shocking level of executive pay found at some institutions is an excellent argument against restricting the act. Universities receive vast sums of taxpayers’ money and they should no more be able to hide large payouts or extravagant expenses than any other public sector organisation.
Arguments were made by groups including the National Union of Journalists that the cost limit for making requests should be raised. If answering a request will exceed a set cost barrier then the authority is able to refuse. This limit was originally set to be in line with that set by the Treasury on answering parliamentary questions which has since increased to £850 while the limit for central government in the FOIA is still £600. The vast majority of requests come in way below the limits, this is by no means representative of the typical cost of providing answers. Local councils in particular were concerned that the cost limit was already imposing a substantial burden on smaller authorities. In our experience, some councils already apply this rule in a manner in which it was perhaps not intended. Cornwall council recently refused to provide data on councillors allowances in 12-15 on grounds that it exceeded the cost limit - if such simple requests cannot be met then the limit may need to be altered. It is encouraging that The Commission was sympathetic to the arguments that the cost threshold should be increased but disappointing that it was chosen not to include this in the recommendations.
We had argued that the scope of the Freedom of Information Act should be expanded to cover the substantial grey area that exists in the contracting out of public services, where substantial sums of taxpayers’ money can be awarded for companies with very limited requirements for transparency. There were concerns that this would be unduly onerous, particularly on smaller bodies or charities providing services. The note struck in The Commission’s report, that there is indeed a need for greater transparency in this area, is positive. An interesting and seemingly reasonable compromise has been suggested: that contracts with a value of more than £5 million per financial year should be covered, but that requests should be dealt with by the awarding authority.
The tone struck by the government in responding to the report is reassuring, particularly the emphasis on transparency and accountability. The Freedom of Information Act is an essential tool to determine how your money is spent and it must not be watered down. The restrictions to challenging rulings by the Information Commissioner are very concerning. No longer being able to appeal decisions relating to the application of public interest tests is a significant retrograde step which should not be underestimated.