By Dr Judith Bannister, Deputy Director of Public Law and Policy Research Unit

With reforms to Australian Commonwealth freedom of information (FOI) still stalled in the Senate[1] it is interesting to see how FOI is faring in the United Kingdom (UK). While the future of the Office of the Australian Information Commissioner (OAIC) remains in limbo, an Independent Commission has recommended that the UK government should investigate whether the UK Information Commissioner’s resources are adequate, along with a range of other recommendations.

On 1 March 2016 the United Kingdom government published the report of the Independent Commission on Freedom of Information. The Commission was appointed to review the Freedom of Information Act 2000 (UK) and consider how FOI has developed in the decade since the Act came into operation.

FOI advocates expressed serious concerns that FOI was under attack[2] when the Commission’s terms of reference were released with specific references to ‘robust protection’ for sensitive information, instructions to consider ‘whether the operation of the Act adequately recognises the need for a “safe space” for policy development and implementation and frank advice’, and an invitation to consider ‘the burden of the Act on public authorities’. It seemed clear what direction the UK Government hoped the Commission would take. However, the Commission has concluded that ‘the Act is generally working well’.

With the particular attention in the terms of reference to ‘safe spaces’ there was very real concern that this might lead to recommendations for a stronger, perhaps absolute, exemption for deliberative communications within public authorities and for Cabinet discussions. The Commission has recommended some reform of the exemptions with guidance on application of the public interest test, but has confirmed that the public interest test should remain.

Of particular interest to Australian readers watching the stalled attempts to abolish the OAIC, the Commission has recommended that the UK Information Commissioner should be given stronger powers to ensure that authorities comply with obligations to proactively publish. This would bring additional responsibilities that would probably require increased funding.

In Australia the plan is to abolish the OAIC and confine merits review powers for FOI decisions to the Administrative Appeals Tribunal (AAT). The Commonwealth government is opposed[3] to the current two-tier system for FOI merits review. The UK Commission has also recommended removal of the two-tier merits review system that is currently available from the Information Commissioner (IC) to the First-tier Tribunal. However, the proposal is to remove the tribunal review which would ‘enhance and strengthen the role of the IC, who would be the final arbiter of appeals on the substance of requests’.[4]

This review by the Independent Commission on Freedom of Information illustrates the powerful impact the Internet can have when proposals for law reform are opened up to public consultation. The Commission received over 30,000 written responses to its call for evidence and the Commission reports that all were read and considered – a major undertaking (although there was some duplication!). The 74 responses from public sector bodies subject to the Act that focused on the burdens imposed by the Act and supported restrictions and fees, were overwhelmed by submissions that strongly support the legislation: 97 submissions from organisations representing the media, lawyers, political parties, trade unions and civil society groups; 693 submissions from individuals including users of the Act and academics; 29,334 individual responses through the 38 degrees campaign website; and 744 identical emails from a Liberty campaign. The report was published promptly and in his response the Minister for the Cabinet Office referred to the ‘considerable interest’ in the review, and ‘the keen public and media interest in the report’. It seems that the significant public support for FOI has had an impact.

[1] Freedom of Information Amendment (New Arrangements) Bill 2014 introduced into parliament 2nd October 2014.

[2] See for example: Campaign for Freedom of Information, https://www.cfoi.org.uk/2015/07/new-foi-commission-heralds-crackdown-on-the-right-to-know/

[3] Senator the Hon George Brandis QC, Attorney-General and Minister for the Arts, ‘Streamlined arrangements for external merits review’, Media Release, 13 May 2014.

[4] Independent Commission on Freedom of Information, Report, March 2016, 43.