Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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The Cabinet Office has announced that it is launching a review of the Freedom of Information Act 2000 ("FOI Act"). The independent Commission will "consider whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice".
It may also examine "the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information".
The review comes in the midst of reported concerns of the Conservative Government that existing FOI Act exemptions have been eroded by recent tribunal and court judgments, such as the Supreme Court's decision to quash the Attorney General's veto preventing the disclosure of letters written by HRH Prince of Wales.
Cabinet Office Minister Lord Bridges told Parliament that after more than a decade in operation it was time that the FOI Act process was reviewed, to make sure it was working effectively.
The cross-party Commission will be chaired by ex-civil servant Lord Burns. Its other members are Jack Straw (who helped draft the original legislation), Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson.
At the same time, the Government has transferred policy responsibility for FOI from the Ministry of Justice to the Cabinet Office. The Cabinet Office states that it will publish the Commission's findings by 30 November 2015.
Lord Bridges also said that the next Open Government National Action Plan will develop an offer on transparency that further strengthens this Government’s commitment to open government: "Our aim is to be as open as possible on the substance, consistent with ensuring that a private space is protected for frank advice. To that end as a government we must maintain the best environment for policy-makers to think freely and offer frank advice to decision-makers. The most effective system is when policy makers can freely give advice, whilst citizens can shine a light into government."
It has yet to be seen how the new Commission will view the balance between openness and transparency against the resources expended by public authorities in dealing with requests under the FOI Act. However, it is likely to be difficult for any government to seek to row back from such an established access to information regime. The Commission may examine the possibilities around amendments to the existing cost limit for dealing with requests, or perhaps consider broadening the scope or number of exemptions from disclosure, in order to limit the burden on public authorities whilst still maintaining transparency. We will send further updates as matters progress.