Freedom of Information

1. INTRODUCTION

The passage of the

Freedom of Information Act (ìthe Actî) marks the fulfilment of a

longstanding Labour Party commitment to freedom of information. The Act is

a major part of the constitutional reform which includes the incorporation

of the European Convention on Human Rights and Fundamental Freedoms into

the UK Law with the Human Rights Act 1998 and the devolution of powers to

the Scottish and Welsh assemblies.

The

Government is committed to moving towards greater openness in the public

sector. When it was issued the draft Bill was described by the Home Office as

ìa radical measure containing clear and robust access rights for those

requesting information and a strong enforcement regimeî. It has been recognised

that legislation alone will not suffice to create a climate of openness; that

cultural and not merely legislative change is needed. The Act is intended to

act as a catalyst for change in the way that public authorities approach

openness and has been matched with other initiatives, such as the establishment

of an Advisory Group on Openness in the Public Sector, which published its

report in December 1999, and changes to the management of public records. The

Act does not apply to Scotland. The Scottish Executive published freedom of

information proposals on 25 November 1999 as ìAn Open Scotland - Freedom of

Information consultationî11. The Freedom of Information (Scotland) Bill was published in 2001. The

Act does apply to Northern Ireland and Wales and the Freedom of Information

(Scotland) Act 2002 received Royal Assent in May 2002.

The

Act employs two mechanisms for placing information in the public domain.

Firstly, it establishes a right for any person making a request to a public

authority to be informed in writing whether or not the authority holds the

information sought and, if so, to have access to that information, subject to

exemptions. Secondly, it also imposes on public authorities a requirement to

publish information that they hold. Public authorities will be required to set

up and maintain publication schemes, which will set out the categories of

information which they undertake to publish.

Two

codes of practice have been issued; one deals with records management by public

authorities and the other gives guidance on dealing with the new access rights

and requests for information.

2. BACKGROUND TO THE ACT

A White Paper on Freedom of Information, ìYour Right to Knowî, was

published in December 1997 for comment and consultation. Following that White

Paper a draft Freedom of Information Bill was published, together with a

consultation document, for pre-legislative legislative scrutiny and public

consultation in May 1999. It was considered by Committees of the House of Lords

and the House of Commons, both of which reported in July 1999. The consultation

document2 remains a useful background overview of the Government's approach in

this area.

The draft Bill was criticised for not being as radical as the White

Paper, however, despite this criticism, the revised Bill went to the House of

Commons very largely as it had appeared in the consultation. It progressed

through the Commons between December 1999 and April 2000. It was introduced to

the Lords in April 2000. There followed a period of uncertainty as to whether

the Bill would make it to the statute book during the life of the Parliament,

however in the end it did so and received Royal Assent on 30 November 2000.

3. THE OPEN GOVERNMENT CODE ON ACCESS TO INFORMATION

There has been a gradual movement in public administration towards

making information accessible, fuelled partly by the increasing popularity of

access legislation in other jurisdictions (France passed laws in 1997, the

Netherlands 1991, Ireland 1998, Canada 1982, Australia 1982 and New Zealand

1982). The UK has participated in this movement.

Since

1994 public bodies subject to the jurisdiction of the Parliamentary

Commissioner for Administration have been required to comply with the Code of

Practice on Access to Government Information (the ìCodeî). This was adopted in

support of the broader policy of public access to information under the

Citizens' Charter initiative. The Code has now been replaced by the Act.

4. IMPLEMENTATION

A period of 5 years from Royal Assent to November 2005 is provided for

full implementation of the Act.3 During this time the new obligations will be

applied gradually throughout the public sector. The definitions and order

making powers came into force on the day the Act was passed, as did the

provisions allowing for the preparation of model publication schemes and work

on the codes of practice.4 The first steps in the implementation of the

Act have been taken. The Data Protection Commissioner was re-named the

Information Commissioner from January 2001 and his office has produced guidance

material and contributed substantially to the preparation of publication

schemes.

The timetable for implementation is as follows: publication schemes were

required to be introduced over the 18 months between November 2002 and June

2004 with the right of access coming into effect for all public authorities in

January 2005.

5. RIGHT OF ACCESS

The core obligation in the Act is the requirement on public authorities

to respond in writing to specific requests made to them for the provision of

information, unless an exemption can be claimed. The response must be in two

parts; the authority must state whether it holds information of the type

requested and must communicate it to the applicant.5 Information

is very broadly treated. It is defined as information recorded in any form.6 As

the consultation paper explained:

ìthis includes paper records and information recorded

electronically, or by any other technological means. The records may be

structured or unstructured, and the information may be recorded in any number

of different forms, styles, media and location. The Bill does not in general

apply to unrecorded information, including information which at the time of the

request has not yet been recorded or information which was recorded only in

records which have been destroyedî

In view of the wide definition provisions have been

included to deal with potential difficulties in finding information and with

the sheer volumes of information which may be subject to requests.

Public authorities will not be obliged to provide

information where they cannot find it without assistance. They may make

reasonable enquiries of the applicant in...