Accès aux documents administratifs / Access to administrative documents I. The UK Freedom of Information Act (FOIA)

The problem of secrecy was particularly acute in the UK, where there was an overarching framework of official secrecy in which official information was protected in the widest of terms by criminal law and frequent use of the non-justiciable prerogative power in matters of governance. The civil service was managed under the prerogative and anonymity, which conventionally protected the identity of civil servants. Official secrecy was buttressed by repressive legislation which was updated in 1989 and which faces further updating in the National Security Bill 2023. There are additionally numerous other statutory provisions apart from the OSA criminally punishing unauthorized disclosures as well as common law offences.

The objectives of seeking to place a FOIA on the UK statute book were to achieve greater forms of accountability, greater participation by the public in government and to make government more open - in present day ubiquitous language, to make government, and the powers exercised by government, more transparent. The objective was to make the bases on which government operated open to greater scrutiny and to encourage debate on public issues on a more informed basis.

The UK FOIA was enacted in 2000 by which time digitization was well under way. Scotland’s FOIA dates from 2002. FOIA covers access to information held by public bodies. Access to personal data is governed by the Data Protection Act 2018 and UK GDPR. Data protection laws are about to be amended.

FOIA came fully into effect allowing individual access to information 18 years ago. The full introduction was delayed by several years to allow public authorities to acclimatise to the new ‘culture of openness’. Publication schemes giving pro-active disclosure of publicly held information were introduced before individual access rights took effect. Publication schemes are mandatory for public authorities (PAs) and contain classes of information on subjects such as: who we are and what we do; how we spend money; our priorities, policies and procedures; how decisions are made and our guidance; registers; minutes; and services. More public information has been put on-line.    

The FOIA confers a right of access to information held by public authorities to anyone. PAs are under a duty on request to confirm or deny whether they hold information. Requests must be made in writing. Fees may be charged (for requests costing over £600 for central government and the armed services, £450 otherwise) although the provision of information is free up to these costed limits. Authorities are under an obligation to provide advice and assistance to requesters. PAs must have complaints mechanisms in place to deal with complaints by requesters and the PA must conduct an internal review of its decision on disclosure. Time limits apply for a response and disclosure although these frequently are not met. Requests may be refused where they are vexatious or repetitive.

PAs may refuse a request on the basis of numerous exemptions. Virtually all exemptions contain a proviso allowing a ‘neither confirm nor deny’ response as set out in the exemption. Exemptions may be qualified and subject to a public interest (PI) test. This means that the Information Commissioner (IC) may decide that although the exemption applies there is a greater PI in disclosure. Where the scales are evenly balanced, the outcome favours disclosure. IC decision notices and tribunal decisions have many examples of such balancing. Particularly important qualified exemptions are contained in s 35, covering the formulation of government policy-making, and s 36 on prejudice to the conduct of public affairs.

Or exemptions may be absolute. This means there is no place for a PI disclosure. Some absolute exemptions are unavoidably so. Information protected by the law of confidentiality (s 41) or where disclosure is legally prohibited (s 44) fall under this category. Other exemptions such as communications between a public authority and the monarch or first or second in line to the throne (s 37) or information supplied by, or relating to, the security and intelligence services (s 23) reflect policy decisions on what must be kept secret. Opinions differ on whether an absolute exemption is needed. In a complex provision (s 40) personal information is subject to an absolute exemption in order for it to be requested, or protected, under the DPA.

The Supreme Court has strengthened the operation of FOIA in several judgments: Kennedy [2014] UKSC 20 showed that common law duties of openness and transparency may assist in overriding an absolute exemption. In Evans [2015] UKSC 21, the Supreme Court ruled the issue of a veto by the Attorney General (s 53) to prevent disclosure was unlawful on the facts of the case. Lord Sumption in Kennedy (para 153) described FOIA as ‘a landmark enactment of great constitutional significance for the United Kingdom.’

FOIA applies to over 100,000 public authorities (PAs) with powers to designate private bodies as a PA for FOIA purposes under terms. Use of designation has been limited. A long-standing and important question has concerned the designation of private sector contractors under FOIA who provide public services. Such contracts have produced highly controversial episodes. Reviews of the FOIA have been reluctant to recommend designation of private contractors. Bodies not listed as PAs are effectively excluded from the Act. The most important exclusions are the Monarch and Royal family and the security and intelligence services and GCHQ.

There is no straightforward way of establishing the total number of FOIA requests. In 2021 only 38 central government bodies are subject to detailed central statistical analysis of FOI performance by the Cabinet Office. In 2021 there were 51,507 FOI requests received across all monitored bodies. This is an increase of 7,312 (+17%) from 2020 and represents the largest number of requests during a year since 2013 (51,696). Across all monitored bodies, 88% of requests were responded to in time, up from 87% in 2020.

The Act brought in a unified regulatory authority for FOI and Data Protection (DP) under the Information Commissioner’s Office although the statutes have their own legislative details which differ significantly. Several other information laws are enforced by the IC including the Environmental Information Regulations. The IC has considerable enforcement, information gathering and penalty powers under FOIA and may issue decision notices, enforcement notices and information notices. The IC’s sponsoring department is Science, Innovation and Technology.  

Accompanying the IC is a system of tribunals to hear appeals under FOIA decisions. There are now two tribunal appellate stages after the IC’s decision. The first tier is the information tribunal which hears appeals on law, exercise of discretion, and which possesses fact reviewing powers. There is a further appeal on a point of law to the Upper Tribunal (AAC). A very specialised, detailed jurisprudence has developed. Appeals then lie to the court of appeal and the supreme court.

The annual reports of the IC contain details of complaints to the IC and appeals.

There have been dramatic FOIA disclosures. The scandal of MPs false expenses’ claims; legal advice on invading Iraq; ministers’ use of personal email accounts for ministerial business was covered by FOIA; separating legal advice from national security information on drone strikes in Syria making them a qualified and not absolute exemption; the existence of a rulebook on a royal legislative ‘veto’; and Prince Charles’ secret correspondence with ministers. The IC has recently called for a review of the use of private email and social messaging apps within government. There is constant reference to FOI releases to the BBC and media providing details for public interest reports.

Disclosure has involved Cabinet discussions and lobbying activity at the highest levels of government. One should not forget the thousands of cases where individuals have received information that is of little public significance but of appreciable importance to them.

Plans are afoot for significant changes to the Information Commissioner so that the IC will be replaced by an Information Commission with a chief executive and executive and non-executive members under the Data Protection and Digital Information No 2 Bill. The first chief executive will be the existing IC. There were fears that this would subject the enforcement of information rights to greater governmental control. The bill is also updating post Brexit UK data protection and digital law.

My belief is that FOIA has helped significantly transform the public authority landscape in the UK. The act has been subject to various official inquiries and an independent commission appointed by the Cabinet Office under David Cameron, who like Tony Blair made outspoken personal criticisms of the act, found that the FOIA has helped change the culture of the public sector. It has enhanced openness and transparency. There was no evidence that FOI rights had to be restricted – in some areas they needed to be increased. Delays by PAs were a problem. There were no proposals for fee increases. We wait to see the impact of the introduction of an Information Commission.

See:

Patrick Birkinshaw Freedom of Information: the Law, the Practice and the Ideal, Cambridge UP, 4^th ed (2011)

Patrick Birkinshaw & Mike Varney Government and Information Rights, Bloomsbury, 5^th ed (2019)

Patrick Birkinshaw ‘Information …’ in The Changing Constitution Oxford UP, 9^th ed (2019) Eds J. Jowell & C. Cinneide.

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