FREEDOM OF INFORMATION ACT

Introduction

            Transparency and accountability are arguably the most essential components of good governance in modern societies. One of the primary ways through which modern democracies strive to achieve these desired attributes is by enhancing public access to government information. Such access creates a crucial defense against bad governance resulting from abuse of office, corruption, and similar malpractices. In light of the benefits of open access to information, many governments have taken positive measures towards adopting and implementing comprehensive Freedom of Information (FOI) acts as frameworks for facilitating access to government records. In this paper, the United Kingdom’s Freedom of Information Act 2000 is comprehensively evaluated.

Background

            In the United Kingdom, there are a number of legislations touching on the rights of the public to government information. They are conventionally referred to as freedom of information legislations that span several agencies involved in the dispensation of public information. The Freedom of Information Act 2000 is a national implementation framework that facilitates the implementation of the freedom of information legislations under a number of elaborate statutory provisions (ICO, 2017). In essence, the act creates a public right to government information. The right is exercised by all citizens who may need to ascertain several areas of governmental function. It came to the limelight during the 1997 elections after David Clark of the Labor Party developed a white paper on the subject of freedom for information (ICO, 2017). His concepts were later incorporated into the Labor Party’s manifesto in the run up to the elections. However, the act came into full operation on the 1st of January 2005 under a Labor Government (ICO, 2017).

            The Freedom of Information (Scotland) Act is also a part of the freedom of information legislation within the domain of the UK (ICO, 2017). It was enacted by the parliament of Scotland with provisions that cover information within the domain of the Holyrood parliament, excluding those over which the Westminster parliament has jurisdiction. However, in terms of statutory provisions, both pieces of legislation have exactly the same purposes.

            The UK Freedom of Information Act is applicable to all public authorities at all levels of government including the central government, governmental departments, agencies, NHS bodies, the police service, and education institutions (ICO, 2017). Additionally, the Scottish FOI Act and its statutory provisions are applicable to the executive arm of the government and all its functional agencies (ICO, 2017). Other public bodies that are affected by the acts include the armed forces, the legislature and local authorities. The only public institutions that are not covered under both forms of the Information Act are courts, tribunals, and security and intelligence services. Additionally, private institutions that execute public functions and those that contract or provide services on behalf of public institutions can be subjected to the UK and Scottish FOI Acts by means of parliamentary orders.

Amendments

            The most recent attempted amendment to the Act was the Freedom of Information Amendment Bill lodged in the British House of Commons as a private bill, under the sponsorship of a Conservative legislator named David Maclean (ICO, 2017). The amendment sought to introduce provisions into the law that would limit the extent to which the Act applied to correspondence by members of parliament. However, the amendment failed to transition into law because it propagated the use of different sets of laws for the members of parliament whilst applying different standards to the general public. It was also faulted on the grounds that it created the public perception that the parliament wished to conceal some government information with no legitimate reasons.

Also the same year, there were suggestions that touched on amending the exemption clauses contained in the statute. The primary proponent of the idea was Lord Falconer who suggested that the time and resources that were expended in the process of determining whether or not information was subject to exemption clauses should be included in the existing cost limit of 600 pounds. Subsequently, discussions involving proponents of the suggestions who asserted that the provisions would eliminate unnecessary requests for information, and critics who contended that such measures would be detrimental to government transparency, were undertaken.

Exemptions

            As aforementioned, the FOI Acts are aimed at bolstering public access to information. However, there are a number of provisions within the act that limit the disclosure of certain types of information. Broadly, there are two categories of exemptions contained in the act (ICO, 2017). The criteria for arriving at the exceptions are based on public interest in the information in question. The first types of exemptions are referred to as absolute, characterized by the fact that they cannot be subjected to any assessment through the prism of public interest. Absolute exemptions are, therefore, completely prevent information disclosure. Conversely, the second types of exemptions are referred to as qualified exemptions, and they include the dimension of public interest assessment. Essentially, in the process of public interest assessment, an evaluation must be undertaken to weigh public interest in the disclosure of the information against the public interest in subjecting the information to an exemption. In total, there are 17 such exceptions that are provided for under the act.

Processing Information

            The statutory provisions of the FOI Act are applicable to all recorded information held by or for all governmental authorities. It includes both digital and hard copies including paper records, electronic correspondence, data stored in computers, and all other types of recorded information. Additionally, information that may not be recorded but is known to the officials of governmental agencies is also covered under the statutory provisions of the Act. Further, the statutory provisions are not restricted by age limitations since they apply to all information regardless of the time when it was recorded. They are inclusive of the time preceding the implementation of the Act. In addition, the intentional destruction of information after it has been requested, with the motive of preventing disclosure, is treated as a criminal offence under the law.

            The UK FOI Act also requires all authorities to commit to the publication of all information unless excluded under a statutory provision. The authorities must supply the information within 20 working days after an application has been made, or make the information available for download on the authority’s website (ICO, 2017). In cases where it cannot deliver promptly and within the requisite time frame, an authority should explain the reasons for its inability. Extensions are allowed in specific circumstances including a 10 working day extra compliance period for National Archives and the Scottish Keeper of Records, and 20 extra days where the requested information is voluminous.  Authorities that fail to adhere to the stipulations as outlined can be subjected to enforcement action by the Information Officer who acts as the oversight authority.

            The process of requesting for information is formally done in writing either through letters, emails, or faxes. Additionally, the provisions of the Scottish FOI Act allow for other permanent forms of application such as voicemail, video and audio records. Ideally, the requests should be directed to the relevant authority’s FOI departmental head. However, in cases where the authority has no such official designation, the request can also be made to the officials responsible for the specific information or to the minister, chief executive, and press officer where journalism is concerned.

Statutory Provisions for Charges/Waivers

            Typically, requests for standard volumes of information do not incur any charges apart from the costs of copying and postage (ICO, 2017). However, the authorities may make charges where a lot of work is required to extract and compile the information. In such cases, they are required under the law to provide information about the charges in advance and ask if the relevant party is willing to pay. The UK FOI Act articulates that the charge limit for governmental departments is 600 pounds, which is equivalent to an estimated 2 days of work. For other types of authorities, the charge limit is 450 pounds, an amount that is also equivalent to 2 and a half days’ worth of work at the same fixed rate applicable to government departments.  However, these cost limits do not necessarily equate to the charges that are incurred in processing all requests. Rather, they simply mean that requests below the limits are only subject to copying, printing and postage costs.

            In contrast, under the Scottish FOI Act, almost all requests are often free or incur very minimal charges. The statutory provisions waive the first 100 pounds of the costs required to process a request. Additionally, for requests above the 100 pound waiver ceiling, the authorities from whom information is requested charge a maximum of 10% of the additional costs. The charges are exclusive of copying, printing, and postage costs.

Appealing Decisions

            As elaborated in a previous section, authorities can reject information requests in some instances. The rejections are governed by the statutory exemptions based on the public interest test. When such exemptions are effected, the law also provides a mechanism for challenging the decisions (ICO, 2017). When appeals of this nature are lodged, they are handled by the UK information Commissioner or the Scottish Information Commissioner. Their primary mandate is the oversight of the implementation of statutory provisions depending on the jurisdiction of the case. However, the grounds for the appeal can only be concrete if it can be sufficiently demonstrated that the refusals are based on unfounded premises.

            Normally, the first stage of the appeals process involves asking the relevant authority to reconsider its refusal decision. The Information Commissioner often only deals with appeals that have first been launched in this manner. Authorities in the UK are not required to have an internal appeals mechanism as opposed to their Scottish counterparts who are obliged to institute frameworks to handle the challenges. In the event that an authority in the UK does not have an internal mechanism, then an appeal can be directly launched with the Information Commissioner.

Conclusion

            This paper has evaluated the UK FOI Act. It has provided a background on the piece of legislation and elaborated upon several aspects of its statutory provisions. The nature and process of information handled under the statutory provisions has also been explored. In conclusion, the discussion has explained the oversight function of the Information Officer in the appeals process for information requests that are rejected by government authorities based on statutory exemptions.

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