Post-legislative scrutiny of the Freedom of Information Act 2000 - Justice Committee Contents

1  Introduction

1.  On 20 December 2011 the Ministry of Justice submitted its Memorandum on Post-Legislative Scrutiny of the Freedom of Information Act 2000 to us.[1]

Process of the inquiry

2.   On 20 December 2011 we published the following terms of reference asking those making submissions to the inquiry to consider:

  • Does the Freedom of Information Act work effectively?
  • What are the strengths and weaknesses of the Freedom of Information Act?
  • Is the Freedom of Information Act operating in the way that it was intended to?

3.  We received 140 pieces of written evidence and took oral evidence from 37 witnesses in 7 evidence sessions. We are grateful to all those who took part in the inquiry.   

4.  A number of sections of the Freedom of Information Act (the Act) appear to be working well and we received little or no evidence on them. In making recommendations, we therefore focused on the provisions of the Act that have come in for the most criticism.

Access to information before 2005

5.  Central Government in the UK has traditionally been regarded as secretive. Before 2005, information was released through official documents, press bulletins and leaks from politicians and civil servants. In April 1994, the then administration introduced a Code of Practice on Access to Government Information. It was intended as an alternative to a statutory right to access information.[2] While the Code covered only "reasonable"[3] requests for information, rather than documents, and contained some broad exemptions[4] it was, like the Act, both retrospective and intended "to improve policy-making and the democratic process by extending access to the facts and analyses which provide the basis for the consideration of proposed policy."[5] In 2001, the then Parliamentary Ombudsman, Michael Buckley, found that while some departments followed the Code in a "clear and efficient" way others failed to abide by either the letter or the spirit.[6] The Code was superseded by the coming into force of the Freedom of Information Act 2000.

6.  Local government was subject to several different information access regimes from the 1960s onwards.[7] As we heard from the Assistant Chief Executive of Leeds City Council, some also had voluntary freedom of information regimes.[8] Bodies coming under the aegis of the Health Commissioner were subject to the Code of Practice on Openness in the NHS from July 1995.[9] Other organisations had local policies on accessing information.[10]

7.  The Labour Party pledged to introduce freedom of information legislation in its 1997 manifesto, echoing a commitment in earlier manifestos.[11] The White Paper, Your Right to Know, described the position on access to public information in 1997 as "[...] haphazard [...] based largely on non-statutory best practice arrangements (in particular the central government Code of Practice on Access to Government Information) with statutory requirements for openness applying only in certain areas such as environmental information, or limited to particular sectors of the public service, notably local authorities."[12] A Bill was presented to Parliament on 18th November 1999.[13] The Act received Royal Assent on 30 November 2000. The provisions of the Act came into force on 1 January 2005.

8.  The Rt Hon Jack Straw MP, who was Home Secretary at the time the Act was passed, told us that the Act was the then Prime Minister, the Rt Hon Tony Blair's, idea.[14] We noted, however, that Mr Blair has described the right to access information as "antithetical to sensible government" and that he said he had been a "nincomp oop" for his role in the legislation.[15] We sought to question Mr Blair on his opinions but he refused to defend his views before us in person and did not submit answers to our written questions by the time this report was prepared. We deplore Mr Blair's failure to co-operate with a Committee of the House, despite being given every opportunity to attend at a time convenient to him.

9.  In the 12 years since the Act was passed the world of information recording, supply and storage has been revolutionised. As the Rt Hon Jack Straw MP, who was Home Secretary at the time the Act was passed, observed: "When we drafted the Freedom of Information Act, we had no serious conception about the internet, which was in its infancy."[16] Throughout this inquiry we have borne in mind the fact the Act has not operated in isolation but in a complex and rapidly changing technological world. While in some areas the effects of the Act can be disaggregated from other influences, in the main the Act is only one of a number of factors. We have therefore sought to focus on practical solutions to the challenges posed by and to the Act in a new information age.

10.  In evidence to us, Lord Hennessy of Nympsfield described the changes he had seen in record and archive-keeping over the years:

If you look at the archives that were created before there was even a 50-year rule, in 1958, they are very full. The 30-year rule is still very full indeed. I do fear that historians [in future] are going to have a much tougher time for two reasons. One is [freedom of information], but there is also the digital revolution. It ceases to be a paper culture.[17]

Lord O'Donnell also observed that "the National Archives people told me that digital records deteriorate faster than paper records."[18] The impact of digital culture and technological change on the quality of the national archives is not an issue we have explored in this inquiry but we intend to return to this matter in the future.

1   Memorandum to the Justice Select Committee, Post-Legislative Assessment of the Freedom of Information Act 2000,Cm 8236 (from here on referred to as Memo) Back

2   Open Government (1993) Cm 2290 para. 1.8  Back

3   Code of Practice on Open Government (1994) Part I, para 1  Back

4   Ibid, Part II Back

5   IbidBack

6   Office of the Parliamentary Ombudsman, First Report of Session 2000-2001, Access to Official Information, HC 126 Back

7   Ev 150 Back

8   Q 389 Back

9   The text of the Code can be found at  Back

10   Ev 170 Back

11   New Labour, New Britain (1996),  Back

12   Cabinet Office, Your Right to Know: The Government's Proposals for a Freedom of Information Act, Cm 3818, December 1997 Back

13 Back

14   Q 333 Back

15   Tony Blair, A Journey, (London 2010), p516 Back

16   Q 327  Back

17   Q 255 Back

18   Q 287 Back

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Prepared 26 July 2012