FOI Commission: Why has it surprised observers?

Cabinet meeting, 2015, with Sir Jeremy Heywood on David Cameron's right Image copyright Getty Images
Image caption Sir Jeremy Heywood (on Prime Minister David Cameron's right) has spoken of the "chilling effects" of FOI

Ministers have chosen not to make sweeping changes to the Freedom of Information (FOI) Act, including ruling out fees for requests for information.

The decision follows publication of a report by an independent commission asked to examine the Act.

There had been concerns within government "sensitive information" was being inadequately protected, while campaigners feared an attempt to curb powers to hold public bodies transparently to account.


Why have possible restrictions on FOI been blocked?

When it was appointed, the government's Freedom of Information Commission was derided by some as an "establishment stitch-up" that would inevitably lead to tough curbs on the public's right to know what its rulers are doing.

In fact the Commission's report has surprised many, being more sympathetic to greater openness than expected, while also backing some changes that would help public authorities to keep some material secret.

And at least one proposal it did make to restrict FOI - bolstering the legal basis for ministers' rights to veto disclosure - has already been rejected by the government.

This has left openness campaigners with some powerful feelings of relief. So, despite the fact that David Cameron thinks FOI "furs up" the process of government, and the Cabinet Secretary Sir Jeremy Heywood objects to its "chilling effects", why have those who want to restrain FOI been disappointed?

There is the zeitgeist of our time, which lauds openness - exemplified in ministerial rhetoric about "being the most transparent government in the world".

There is also the strong pressure applied by FOI supporters - notably the dedicated and tightly argued lobbying by the Campaign for Freedom of Information, the numbers mobilised through the website 38 Degrees, and the powerful publicity of the media, such as the Daily Mail.

And there is the fact that the government would probably find it difficult to get restrictive change through Parliament. Its small majority in the Commons could easily be overturned as some Tory MPs like David Davis have already made it clear they would oppose constraints on FOI. In the Lords the government has no majority at all.


Is there another possibility?

Yes, that in its lengthy and detailed report the Commission shows it was swayed by the evidence about how FOI actually works in practice.

It is not yet clear how the government will respond to all the Commission's recommendations. The Cabinet Office minister Matt Hancock says: "We will not make any legal changes to FOI", so that would appear to rule out any legislation.

This would mean that many of the Commission's ideas - both some promoting secrecy and others promoting openness - would not be implemented. Any change would then be limited to government guidance.

In which case the Freedom of Information Act would be left, as the Commission puts it, pretty much in its current state of "working well".


Why was the Freedom of Information Commission set up?

The Freedom of Information Act has not been popular at the heart of government.

The act gives the public the right to obtain much of the information held by public authorities and is regarded by many in positions of power as somewhere on a scale from pointless nuisance to deeply infuriating and much worse.

This is true both of politicians and officials.

Last year Prime Minister David Cameron described FOI as being one of the "clutteration" and "buggeration" factors that impeded the process of governing.

In 2012, he told a committee of MPs it was an "endless discovery process that furs up the whole of government" - although he quickly added: "Don't worry, we are not making any proposals to change it."

The Cabinet Secretary, Sir Jeremy Heywood, in a rare public appearance, told a seminar last year FOI, while "positive" overall, had led to extra costs and "chilling effects" - the term used to argue officials were now less likely to provide frank opinions and record honest discussion.

Against this background, the trigger was a judgement from the Supreme Court last March in the dispute involving the Prince of Wales' correspondence with ministers, where he had advocated particular causes.

The court backed the Guardian's case these letters should be released.

Image copyright Cabinet Office
Image caption One of Prince Charles's letters referred explicitly to the Freedom of Information Act

In doing so, the court made it much harder for the government to use the "ministerial veto", the "backstop provision" that allows it to overrule instructions from the Information Commissioner or the Information Rights Tribunal that material should be disclosed.


What was the commission's remit?

The commission's core aim was to review whether "sensitive information" and policy material needed greater protection from disclosure.

It was also authorised to examine whether FOI places an excessive "burden" on public authorities.

Some local councils have complained about the cost of dealing with FOI requests, particularly trivial ones and those that come from the media or businesses.

The public protests from local government about FOI have tended to focus on this issue of the "administrative burden", in contrast to concerns expressed at central government level, which are not about cost but mainly about protecting policy discussion.

The commission's role relates to the UK-wide act, which covers England, Wales, Northern Ireland and UK-wide public bodies.

There is a separate, although similar, Freedom of Information Act for Scotland.


Why was the commission's creation controversial?

Freedom of information campaigners argued at first that the review was too narrowly focused, only on restrictions to FOI, when it should also have been asked to consider ways the act could be extended.

Image copyright Getty Images
Image caption Former Home Secretary Jack Straw (seen here at the state opening of Parliament) was appointed to the commission

The membership of the commission was also strongly criticised for being limited to people with a one-sided experience of FOI - that of being on the receiving end of requests rather than making them.

Former Treasury permanent secretary Lord Burns chairs the commission.

Other members included Ofcom head Dame Patricia Hodgson and two former Home Secretaries, Lord Howard and Jack Straw.


How has the commission operated?

The original announcement said the commission, created in July 2015, would report by November.

In the wake of the fuss over its composition, it then decided to issue a consultation document and take evidence, and it fell badly behind its initial timetable.

In October last year, the commission was widely ridiculed after it gave a briefing to a select invited group of journalists, which it insisted was off-the-record, while the unidentifiable anonymous source there stated: "Our aim is to be as open as possible."

Since then, the commission has changed its approach, posting on its website minutes of its meetings, research papers it has commissioned and some of the evidence it has received.

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