2 Background
9. The FOI Act will apply to approximately 100,000
public authorities, including central and local Government, Parliament,
the National Assembly for Wales, the armed forces, the police,
hospitals, GPs, dentists, schools, universities, publicly funded
museums and many other bodies.[8]
The Scottish Parliament has enacted separate Freedom of Information
legislation introduced by the Scottish Executive, which applies
to bodies within the competence of the Scottish Parliament.[9]
The Scottish Act will came into force on 1 January 2005 and will
be promoted and enforced by an independent Scottish Information
Commissioner.[10] Northern
Ireland has decided to adopt and operate the FOI Act in line with
England and Wales.
10. The FOI Act establishes a statutory right of
access to information. Following full implementation, a person
who writes (or sends an email) to a public authority and asks
them for information will have the right to be informed in writing
whether the authority has the information, and, if it does, will
be entitled to have the information communicated to them, subject
to clearly defined exemptions. Applicants do not have to specify
that they are making the request under the Act. The Act is fully
retrospective, i.e. it applies to all information held by an authority,
not merely information created or acquired by it after 1 January
2005. Anyone may apply under the Act, including non-citizens and
people living abroad.
11. The Act contains exemptions, which specify the
circumstances in which information may be withheld. Many of the
'exemptions' will be subject to a 'public interest test'. Where
the public interest test applies, the authority concerned will
still be required to disclose the information, unless it can demonstrate
that the public interest in withholding the information outweighs
the public interest in disclosing it. The public interest is not
defined in the Act. Other exemptions are 'absolute', which means
that the public interest test does not have to be applied.
12. Any decision not to disclose information may
be subject to an appeal to the independent Information Commissioner,
currently Mr Richard Thomas. Decisions of the Information Commissioner
can be challenged by the applicant or the public authority to
the Information Tribunal, free of charge, and then to the courts
on a point of law. The Act gives Ministers at Cabinet level the
ability to override the Commissioner's decision that a Department
(or other public authority specified by Order) disclose exempt
information in the public interest.
13. The FOI Act received Royal Assent on 30 November
2000, since when there have been four years to prepare for implementation.
Some procedural parts of the Act have already come into force:
in particular, the provisions which require public bodies to adopt
and maintain publication schemes, setting out details of information
that is routinely made available. Where a large number of public
authorities all perform very similar functions the Act allows
for model publication schemes to be developed. Such model schemes
contain pre-defined classes of information with general titles,
as well as standard information about charging and manner of publication
and must be approved by the Information Commissioner's Office
(ICO). The main provisions for granting the public a right to
information come into force on 1 January 2005.
The Decision to Adopt the 'Big
Bang' Approach
14. The Department decided to implement the FOI legislation
across the 100,000 public sector bodies concerned simultaneously,
using what has been called a 'big-bang' approach. Critics have
suggested that it would have been prudent to roll implementation
out in stages starting with central government first and moving
on to other parts of the public sector later. A counter-argument
put forward by the DCA is that there has been a phased approach:
a first phase covered the publication schemes that each public
body has been required to produce; a second phase is the implementation
which is to take place on 1 January 2005.
15. Mr Maurice Frankel of the Campaign for the Freedom
of Information told us that the big-bang approach was ill-conceived
from the outset:
I think [the big-bang approach] is bad verging
on potentially catastrophic…central government could have
done this much earlier, had a lot of experience from the Open
Government Code and could have dealt with a lot of the problems
which are going to come up relatively easily. Instead of that,
every single authority in every sector is confronting the same
problem simultaneously with no opportunity to learn from anybody
going ahead.[11]
He added that:
[Furthermore] the Information Commissioner…will
start to receive complaints across the whole public sector at
roughly the same time instead of having it come in sector by sector
with some dividing time of months to adapt to. [12]
16. Birmingham City Council told us that, "we
feel that the Government has taken an ambitious step in implementing
the Act, after the Publication Scheme provisions, in one single
go".[13] Other local
government witnesses agreed that a phased approach would have
been preferable, not least as it would have allowed for better
training based on real-life UK experiences. Ms Katherine Matley
of the Association of Greater Manchester Authorities said:
We also feel that because we have been referred
to cases abroad—we have been referred to Ireland for case
histories, we have been referred to Canada—we have no real
local government experiences and we found that a difficulty when
training our staff. We would have liked to have trained staff
on exemptions and given real experiences and we have not been
able to do that.[14]
The Parliamentary Under-Secretary of State told the
Committee that "a lot of work went into deciding how best
to take freedom of information forward" which included consideration
of other approaches, but the approach of 'big bang' had been adopted
in order to make it clear to the public what their rights were
from one date in a clear way.[15]
17. Given the decision to implement the Act across
the whole public sector at the same time, the process of implementation
has created special challenges. We recognise the practical difficulties
placed on those responsible for implementing this legislation
on a single start date. We review (below) the situation in a number
of different sectors.
8 The DCA website provides a list of the bodies covered
by the legislation. www.dca.gov.uk/foi/coverage.htm Back
9
The Freedom of Information Act (Scotland) 2002 Back
10
The Scottish Information Commissioner's website is at www.itspublicknowledge.info Back
11
Q 87 Back
12
Q 87 Back
13
Ev 71 Back
14
Q 186 Back
15
Q 301 Back
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