Consultations of the Task Force with other Jurisdictions on their Access to Information Regimes

United Kingdom

Access to Information Regime

A new Freedom of Information Act was passed on November 30, 2000. The U.K. government subsequently announced that the legislation will not come in force before 2005; however, the publication schemes referred to in the Act will become a legal requirement under a phased implementation program from November 2002 to June 2004. In the meantime, the Code of Practice on Access to Government Information will continue to apply.

The Act provides a general right of access to all types of recorded information held by public authorities, subject to certain conditions and exceptions. The Act has a much wider scope than the Code. It applies to central government, the health service, local government, schools, colleges and universities, other public bodies, and to publicly owned companies and private bodies exercising public functions. The Act also covers the House of Commons and the House of Lords. The Security Service, the Secret Intelligence Service and Government Communications Headquarters (GCHQ) are not covered by the Act. The Act is fully retrospective.

Under the Act, any person who makes a request to a public authority for information must be informed as to whether the public authority holds the information and, if so, the information must be supplied, subject to certain conditions and exceptions.

As in all FOI legislation, the Act contains exemption provisions. They protect national security and international relations; the economic interests of government; third party information (personal information about individuals, and commercial information supplied by companies). Information held by a government department relating to the formulation or development of government policy, ministerial communications, legal advice, and the operation of a ministerial private office is exempt. Minister’s offices are considered to be part of the department and their staff are public servants. However, personal and political papers of a Minister are considered held on behalf of an MP and therefore not covered by the Act.

Even where information is legally exempt from disclosure, the Act imposes a duty on public authorities to disclose the information where the public interest in disclosure is deemed to outweigh the public interest in maintaining the exemption.

A new office of Information Commissioner has been established to oversee the Act, with wide powers, including the making of binding orders. The Information Commissioner is also responsible for the Data Protection Act. The Information Commissioner is appointed by the Crown by Letters Patent and reports directly to Parliament. Her budget comes from the Lord Chancellor’s Department.

The Information Commissioner approves publication schemes, promotes good practices and compliance with the Act, disseminates information and gives general advice about the Act. With consent, the Commissioner can assess whether a public authority is following good practice. The Information Commissioner may issue a practice recommendation in respect of non-conformity with either of the Codes of Practice (under the FOI Act and records management).

A person who has made a request for information and is not satisfied with the response of the public body may apply to the Information Commissioner for a decision as to whether the request has been dealt with according to the Act. In response, the Information Commissioner may serve a decision notice on the public authority and the applicant, setting out any steps which are required in order to comply.

The Commissioner also has the power to serve information notices and enforcement notices on public authorities. In certain circumstances the Information Commissioner may issue a decision or enforcement notice requiring disclosure of information in the public interest. However, a signed certificate from a Cabinet Minister giving reasons why it is not in the public interest to disclose the information can override the Information Commissioner’s notice. The certificate is subject to judicial review. All notices may be appealed to the Information Tribunal.

Decisions of the Information Tribunal may be appealed to the High Court on issues of law only. The Commissioner will report annually to Parliament on the exercise of her functions and may also table special reports. The Office of the Information Commissioner is itself subject to the Act.

The U.K. had the benefit of studying Access to Information legislation in many other jurisdictions before developing and implementing their own Act. However the law as passed is seen as much more restrictive than the concepts put forward in a White Paper on access legislation, even after the many amendments made to the original Bill. For example, the Act contains no purpose clause or statement of its objectives

The Act relies heavily on the concept of publication schemes requiring public authorities to specify the information they will publish as a matter of routine. Web sites are expected to make a huge difference in the amount of information which will be routinely published. The Information Commissioner sees the implementation of the publication schemes as the first priority. Once a publication scheme has been approved, the public bodies will have to comply with them. The goal of the publication scheme is to gradually change the culture so that there is more information provided proactively and fewer things have to be requested on a case by case basis.

The law is described as “applicant blind” and requests can be made in writing from anywhere in the world. There are provisions in the Act to protect against vexatious or repetitive requests, or requests requiring too many resources to respond. A public body can be exempted from processing a request where the cost exceeds a threshold to be prescribed by the Secretary and expected to be set at £550. Public bodies will also have the option of charging full cost-recovery for such requests. Public bodies must, however, assist requesters to focus their requests so they are not refused or charged full cost because the request is deemed too large.

There is no application fee under the Act and the government is considering only a marginal (10% of true cost) fee for search combined with full cost for reproduction of records. No new funds are expected to be provided to departments to absorb FOI costs as the law is implemented. The government estimates additional costs of up to £19 - £20 million ($41 – 44 million CDN) once the program is fully implemented.

The British FOI system does not envisage a cadre of FOI professionals to process requests with delegated authority to disclose information, such as can be found in the US and Canada. The officers and first level program managers will do primary decision-making on disclosure of records. All requests for information, however stated, will be considered to be made under the Act and dealt with accordingly. The Government will have to invest time and resources training all public servants and improving proactive dissemination and informal release practices.

The law will apply to all recorded information. As in most jurisdictions, a concern is the perceived poor state of overall records management in the bureaucracy. Forthcoming action plans under the new law will emphasize the requirement for institutions to have a qualified records manager and to document record appraisal and disposal decisions. Guidance on management of e-mail and the disposition of other ephemeral records will also be developed. In tandem with the FOI legislation, the U.K. government wants all public records to be created electronically by 2004, as part of a 1999 Modernizing Government initiative.

The Act protects third party information, but, in contrast with legislation in other jurisdictions, there is no statutory duty to give notice or to consult with third parties on the release of their information, and third parties have no right of appeal to the Information Commissioner, Information Tribunal or the Courts. The only relief for third parties could be in seeking an injunction or damages for breach of confidence under the common law.

Critics see the exemption from disclosure of policy advice as too broad. At the Cabinet level, policy advice includes agendas, meeting notes, memoranda, and advisory presentations. Given the fact that policy advice often includes factual information, which should be disclosed, the government is now developing guidance for departments on what must be disclosed and what should be withheld. Critics are also displeased that the combination of a “substantial harm” test and a “public interest” test proposed in the White Paper has been replaced by either a “prejudice” test combined with a “public interest” test, or a “public interest” test alone where public bodies seek to withhold information.

The British FOI regime will have a four-tiered review system. There will first be an internal review by the public authority (senior officer but not in direct line of management) and then a review by the Information Commissioner, followed by an appeal to the Information Tribunal. And finally, to the High Court on points of law.

One area that can be subject to judicial review will be the use of Minister’s Certificates – where a Government Minister seeks to withhold information that the Information Commissioner believes should be disclosed in the public interest. However, critics of the law suggest this Ministerial Certificate concept should be scrapped altogether.

The Information Commissioner’s key roles are of promoting good practices and as a neutral body to adjudicate disputes between requesters and the state. The Commissioner will not provide advice on particular cases, but will produce training packages to guide public bodies.

Mediation is not provided specifically in the powers of the Commissioner; however, it is expected that in processing complaints, the IC will only use enforcement powers after having tried a mediation process. The range of notices provided in the Act give the Commissioner effective tools to encourage the settlement of disputes. It is expected that there will be a clear distinction between the inquiry process and the mediation process.

The Information Commissioner has the general entry and search powers of a tribunal and can require information from a public authority by information notice, but for a subpoena the Information Commissioner has to apply to the Court and give notice. The Commissioner can look at any record, and she is expected to conduct paper reviews while the Information Tribunal would conduct hearings.

There is no statutory provision for the collection and publishing of data on the application of the Act, and at this point, there are no plans for any such activity.