The UK Freedom of Information Act: The First Year

Dr Chris HagarINASP

chagar@inasp.info

CRRC-DAAD Conference on “Social State: Concept, Armenian Reality and Perspectives“, February 24-26, Tsakhkadzor

Overview

Global context The UK Freedom of Information Act First Year of Implementation: The

right to request information from January 2005

FOI stories – what has been disclosed

Issues

What is FOI? Legislation that empowers individuals to

examine, appraise, and analyse government and public sector accountability and transparency

Why? Widely recognised that unnecessary secrecy

undermines public trust in government Information society

Information rights Constitutional rights Citizenship in the information society

FOI Laws – common format Provide individual with right of access to

documents held by government and public authorities

Applicant not required to give reason for, or justify request

Information can be withheld where law permits

Exemptions to right of access Refusals can be challenged

FOIA Countries – by continent The 68 FOIA countries continent wise ( Roger

Vleugels, 2006) Dates – formal approval and year in which

country FOIA came in power Name of the FOIA

Africa South Africa 2000 2001 Promotion of Access to

Information Act Uganda 2005 2005 Access to Information Act Zimbabwe 2002 2002 Access to Information

and Protection to Privacy Act

FOIA Countries – by continent Asia [including The Middle East] Armenia 2003 2003 Law on Freedom of Information Georgia 1999 2001 LFOI: Law on Freedom of Information Hong Kong 1995 1998 CAI India 2002 2005 Right to Information Act Israel 1998 1999 Freedom of Information Law Japan 1999 2001 Law Concerning Access to Information Pakistan 2002 2002 Freedom of Information Ordinance South Korea 1996 1998 Act on Disclosure of Information Tajikistan 2002 2002 Law on Information Thailand 1997 1997 Official Information Act Turkey 2003 2004 Law on Right to Information [[small part =

Europe]] Uzbekistan 1997 1997 Latest revision 2003: Law on the

Principles and Guarantees of FOI

FOIA Countries – by continent

The Americas [including the Caribbean] Antigua/Barbuda 2004 2004 FOIA Aruba 1999 1999 LOB: Landsverordening openbaarheid van bestuur Belize 1994 1994 FOIA Canada 1982 1983 AIA: Access to Information Act Colombia 1888 1888 Latest revision 1985: Law Ordering the Publicity of Off.

Acts and Documents Dominican Rep 2004 2004 Law on Access to Information Dutch Antilles 1999 1999 LOB: Landsverordening openbaarheid van bestuur Ecuador 2004 2004 Transparency and Access to Information Law Jamaica 2002 2002 Access to Information Act Mexico 2002 2003 Federal Transparency and Access to Public Government

Information Law Panama 2002 2002 Law on Transparency in Public Administration Peru 2002 2003 Law on Transparency Trinidad & Tob. 1999 2001 FOIA USA 1966 1967 Latest revision 2002: FOIA

FOIA Countries – by continent Europe Albania 1999 1999 Law on Right to Information Austria 1987 1987 Auskunftsplichtsgezetz Belgium 1994 1994 WOB: Wet openbaarheid Bosnia & Herz. 2000 2002 FOIA Bulgaria 2000 2000 APIC: Access to Public Croatia 2003 2003 Act on the Right of Access Czech Republic 1999 2000 Law on Free Access to Denmark 1970 1970 Latest revision 1985: Access Estonia 2000 2001 PIA: Public Information Finland 1951 1951 Latest revision 1999: Act France 1978 1978 Law on Access to Administrative Germany 2005 2006 IFG: Informationsfreiheitsgesetz Greece 1986 1986 Latest revision 1999: Code Hungary 1992 1993 The Protection of Personal Iceland 1969 1996 Information Act Ireland 1997 1998 FOIA Italy 1990 1990 Law No 241 Kosovo 2003 2003 Law on Access to Official Latvia 1998 1998 LFOI Liechtenstein 1999 2000 Informationsgesetz

FOIA Countries – by continent Lithuania 1996 2000 Law on the Provision of Information Moldova 2000 2000 Law on Access to Information Montenegro ? 2005 ? Netherlands 1978 1980 Latest revision 2005: WOB: Wet Norway 1970 1970 FOIA Poland 2001 2002 Law on Access to Public Information Portugal 1993 1993 Law on Access to Administrative Romania 2001 2001 Law on Free Access to Information Scotland 2002 2005 FOIA Serbia 2003 2004 Law on Free Access to Information Slovakia 2000 2001 Act on Free Access to Information Slovenia 2003 2003 Act on Access to Information Spain 1992 1992 Law on Rules for Public Information Sweden 1766 1766 Latest revision 1976: Freedom Switzerland 2004 2006 Öffentlichkeitsgesetz Ukraine 1992 1992 Constitution art. 34 and OAI United Kingdom 2000 2005 FOIA [UK minus Scotland]

FOIA Countries – by continent

Oceania Australia 1982 1982 FOIA New Zealand 1982 1982 Official

Information Act

Most complete FOI statement - Finland

“to promote openness and good practice on information management in government and to provide private individuals and corporations with an opportunity to monitor the exercise of public authority and the use of public resources, to freely form an opinion, to influence the exercise of public authority and to protect their rights and interests”

(Act on the Openness of Government Activities, 1999 [Finland], section3)

UK Freedom of Information Act

Passed in 2000 Came into force in stages Fully into force January 2005 Covers entire public sector Promotes greater openness and

accountability

Which organisations are affected?

Central Government Local Authorities Police The Health Service Schools, Colleges and Universities Private organizations designated

as public authorities

The Act: Applies to public authorities Establishes statutory right to information Allows anyone, no matter who or where

they are, to find out whether information is held, and if it is, to have access to it

Sets out exemptions from that right Provides for the release of exempt

information in the public interest

The Act:

Allows arrangements for enforcement and appeal

Can result in imprisonment for contempt of court

The Act:

Requires public authorities to produce publication schemes

Requires codes of practice Creates the Office of the

Information Commissioner Amends Data Protection of 1988

The Act: Covers all information ‘held’ regardless in

which form recorded Fully retrospective Anyone can apply for information All written requests for information to be

dealt with in 20 working days There is no exemption for

embarrassment There are implications for the private

sector

Publication schemes

Authority must adopt and a maintain a PS, approved by the Information Commissioner Guide to types of information

published Format Cost, if any

Codes of practice

Access code How to handle requests for information Level of advice and assistance expected Transferring requested from one public

authority to another Consulting with third parties who may

be affected by the release of information Records management

Exemptions

23 exemptions e.g. Certain information relating to

national security Information that would prejudice

international relations Commercially sensitive information

Office of the Information Commissioner

Complaints procedure The IC can:

Serve an ‘Information Notice’ on any public authority

Issue a ‘Decision Notice’ following his consideration of a complaint

Serve an ‘Enforcement Notice’ on the public authority

Data Protection Act (DPA) and FOI – how do the two interact?

DPA provides individuals with a right of access to personal information

FOI provides information in relation to a public authority

Need to develop a DPA which balances personal information privacy with need for public and private organisations to process personal information

The First Year

Early days Generally seen to be working well “Hopeful glimmers of change starting to

appear” (Gregorczuk, 2005) Statistics

No official figures for total no. of requests

Estimate 130,000 requests 36,000 received by central government

The First Year – Who has used the Act?

Who has used the Act? Public Media

Scandals, requests from tabloid press Pressure Groups

The First Year: What has been disclosed?

Differences in UK experience Full implementation – not phased High political charge

Shadow cabinet made 130 FOI requests in first three weeks

Journalists – utilising information gained to write stories about local authorities

Volume of requests high Close ministerial interest in the law

Issues

OIC received 2,200 complaints Disclosure of information

Good Local government Police Dept. for the Environment & Rural Affairs Ministry of Defence Transport

Issues

Disclosure of information Bad

Downing Street Trade & Industry Treasury Home Office

Issues Office of the Information Commissioner

Delays in replying to requests Of 2,200 – 1,300 remain outstanding

Transparency of government departments Fees to be charged by government bodies? The Central Clearing-House Records management

Information creation

Issues to consider in producing criteria Administrative law Case law Jurisprudence Opportunistic FOI behaviour of civil servants and/or

cabinet members, The request volume Costs Quality of the archives Time for processing Access problems Political culture Civil society culture and ……

Questions / discussion

What is a good FOIA? What are objective criteria? What is a minimum standard for an

FOIA Act? Existence of a FOI act = assurance

that it will be effective?

Questions / discussion Information society

Information rights? Constitutional rights? Citizenship in the information society?

Change in culture The UK FOI is less a formal indicator

of democracy and more a customer service designed to build up trust in the government ( Gregorczuk, 2005)

Reading

News, views and updates on the UK Freedom of Information Act and worldwide FOI and open government. Maintained by Steve Wood, Lecturer at Liverpool John Moores University http://foia.blogspot.com

Open Government: a journal on freedom of Information www.opengovjournal.org/