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Information Access Rights in FOIA and FOISA – Fit for Purpose?

Document Cited authorities 10 Cited in Related
Vincent
Pages55-87
Date01 January 2017
Published date01 January 2017
DOI10.3366/elr.2017.0389
INTRODUCTION

The Freedom of Information Act 2000 (FOIA) enacted by the Westminster Parliament applies to public authorities in England, Wales and Northern Ireland and to UK public authorities that operate in Scotland, e.g. the BBC, whilst the Freedom of Information (Scotland) Act 2002 (FOISA), promulgated by the Scottish Parliament, applies to Scottish public authorities.1 Both Acts commenced on 1 January 2005, and have been hailed as success stories – helping the public and the press to obtain information on issues such as: problems with a nuclear reactor,2 inadequate health services,3 school closures,4 a lack of suitable quality housing for people with disabilities5 and so forth.6 Nevertheless, FOIA has been described as “a brilliant piece of trompe l'oeil, a sheep in wolf's clothing”,7 appearing to offer a legally enforceable right of access to governmental information subject only to specified and justifiable exemptions when, in fact, it offers weak information access rights. By contrast, it has been asserted that “Scotland has the most robust Freedom of Information regime in the UK”.8 A two-strand approach is used to test the veracity of these claims and determine whether both jurisdictions have freedom of information laws that are fit for purpose as the Acts enter their second decade. Firstly, an assessment of the degree of compliance of both Acts with principles that have been endorsed by the United Nations as forming the normative foundations of freedom of information laws is undertaken. Secondly, the Acts are compared to ascertain whether FOISA does in fact offer stronger information access rights than FOIA and, if so, what lessons the UK could draw upon to strengthen FOIA. The analysis will demonstrate that the Acts are creatures of their respective Parliaments and that distinct political cultures have influenced their evolution over the past ten years leading to significant divergences between the two. It concludes that, at present, FOISA offers stronger information access rights whereas FOIA offers weaker rights, but both Acts should be amended to ensure full compliance with the UN endorsed principles if both jurisdictions are to have information rights that are fit for purpose as the Acts enter their second decade.

 COMPARATIVE ANALYSIS – NORMATIVE PRINCIPLES

The highly respected NGO ARTICLE 19 synthesised nine normative principles from international and regional laws (e.g. UNDHR and ECHR) and judicial pronouncements in 1999 and updated them in 2015.9 These United Nations endorsed principles collectively constitute best practice standards in respect of right to information legislation.10 This article analyses compliance with six of the nine principles only, namely: Maximum disclosure, Obligation to publish, Promotion of open government, Limited scope of exceptions, Processes to facilitate access and Costs. The Acts are not compared against the open meetings, disclosure takes precedence, or protection for whistleblowers principles since other laws, which are not the focus of this paper, govern these.11 The evaluation is timely as the first UNESCO-commissioned comparative survey of freedom of information laws compliance with these principles was conducted in 2003,12 prior to the implementation of FOIA and FOISA. The second in 2008 took place shortly after their implementation when insufficient data such as Tribunal decisions, court cases and information commissioner reports existed to properly assess their compliance.13 This article provides the first comparative assessment of compliance with the updated principles. Compliance is evaluated by reference to ministerial speeches, white papers, parliamentary debates, post-legislative reviews, public opinion surveys and statistics on performance, Commissioner decisions and cases heard by Tribunals and Courts in both jurisdictions.

Maximum disclosure principle

The ‘maximum disclosure’ principle seeks to establish a culture of information rights in countries where none has previously existed. It does this through recommending the granting of legally enforceable rights not limited by residence or purpose, recommending that the legislation contain broad definitions of information and public authorities and further, the inclusion of criminal and financial sanctions for actions intended to prevent disclosure, to promote compliance with the law. Both Acts comply with this principle in granting access rights to ‘all persons and informal and formal organisations, regardless of citizenship or residence’,14 and in defining information as ‘information recorded in any form’,15 regardless of its form, status, date received and whether or not it was produced by the public authority which holds it at the time the request is received.

<italic>Public authorities</italic>

Both Acts appear, at first glance, to comply with this principle's recommendation to interpret the term ‘public authority’ broadly since Schedule 1 of both Acts list a large number of public authorities by name that includes all central government departments and legislative bodies and the armed forces.16 Schedule 1 of FOIA lists more bodies than its Scottish equivalent, partly a reflection of Scotland having fewer public authorities since the BBC17 and other bodies such as the Forestry Commission and Scottish Consumer Council were, prior to devolution and today, continue to be considered UK-wide public authorities under FOIA. Also, information supplied by a UK Minister or UK Government Department and held in confidence by a Scottish authority is not ‘held’ by a Scottish authority for the purposes of FOISA. Rather the request should be made to the relevant Minister or Department of the UK Government under FOIA – a reflection of the ultimate sovereignty of the Westminster Parliament.18

A second aspect of this principle anticipates and provides for changes in government service delivery, in recommending designation as ‘public’ those ‘private’ bodies which ‘carry out public functions (such as maintaining roads or operating rail lines) or hold decision-making authority or expend public money’, thereby ensuring continuing information rights as public service provision is outsourced to private contractors. Extending FOI obligations to private providers of public services is a crucial test of how committed a government is to being truly open and transparent since bodies not classified as ‘public authorities’ are beyond the scope of the Acts and not legally obliged to respond to information requests. The inclusion of designation powers19 in both Acts suggests compliance with this principle. However, the Scottish Government was slow to add to the list of designated bodies, not doing so for the first nine years of the Act. On a positive note, FOISA was amended in 2013 to include a new section, s 7A, which provides that Ministers are obliged to report to Parliament on their use of the designation power every two years and give reasons for not using the power if it has not done so in the two-year reporting period.20 It has been used regularly since then to extend FOISA to cover recreational, sporting, cultural or social bodies established and financed, wholly or in part, by local authorities,21 contractors who run privately-managed prisons, providers of secure accommodation for children, grant-aided schools and independent special schools, and an organisation that exists to facilitate the commercialisation of intellectual property arising from the staff of NHS Scotland (Scottish Health Innovations Ltd).22 These designations are evidence of a FOISA-friendly political culture as the Scottish Government cited parity of legal responsibilities and equity in terms of accessing information irrespective of sources of funding when designating these bodies, and asserted that the benefits outweighed the compliance burden that would be imposed on private contractors.23

The Westminster Government was also slow to designate – it took five years from implementation for the power to designate bodies to be utilised.24 A subsequent proposed amendment to FOIA25 to automatically bring all information held by a contractor (including that held by a sub-contractor) about the performance of a contract within the Acts did not receive support from the Coalition Government. Instead, they favoured introducing a revised code of good practice under section 45 of the Act.26 The NGO, Campaign for Freedom Of Information (CFOI) is critical of the code because it is voluntary and lacks sanctions: “Should an authority choose to ignore the new code, all the Commissioner can do is issue a non-binding ‘practice recommendation’. If a contractor refuses to disclose voluntarily, even this option won't be available”.27 The ICO recommended that the Act be extended to private bodies providing public services under contract by treating information about the performance of the contract as being “held” on behalf of the contracting public authority where the contract is over £5 million in value or continuing over five years or where the contractor solely derives its revenue from public sector contracts.28 This would, if introduced, ensure that FOIA obligations extend to outsourced contracts, thereby preserving information rights that existed when such contracts were performed by public authorities. The Conservative Government led by Mr Cameron favoured a “small state” model of government in which many services traditionally provided by the public sector were outsourced to private providers, so its silence29 in response to the ICO's recommendation on this issue was telling. Allowing such bodies to comply with transparency measures on a voluntary basis with no effective sanctions for non-compliance suggested that it was not truly committed to FOIA. It remains to be seen whether the Conservative Government led by Theresa May will adopt a different approach.

 <italic>Penalties</italic>

FOIA and FOISA both comply with the maximum disclosure principle requirement to contain...

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