The Freedom of Information Act – it’s here to stay.

Many institutions find the Freedom of Information Act (FOIA) at best an irritant and at worst a frustratingly significant drain on resources.  The Justice Committee, on the other hand, in the first report on the post-legislative scrutiny of the FOIA, concluded that the regime has been “a significant enhancement of our democracy” and achieved its principal objectives of openness, transparency and accountability.  It did concede, however, that it has not achieved its secondary objective of enhancing public confidence in Government and was unlikely to do so.

The bad news is that universities were viewed as an important part of the public sector and should remain subject to the FOIA.  On the other hand, the good news is that there is recommendation to include an exemption for unpublished research, thereby achieving parity with Scotland and with other jurisdictions to protect competitiveness.  This will be effected by means of an extension of the current exemption for information intended for future publication (FOIA s22). 

Other interesting recommendations are as follows:

Costs and fees – developing a methodology to assess the costs of determining whether an exemption applies or where the balance of public interest lies would be too difficult to achieve.  Those exercises are inherently subjective and the time incurred would depend on the vigilance and tenacity of the personnel performing them and, as a result, would lead to inconsistency. The current restriction that only the information-retrieval process can be taken into account in calculating the cost limit will therefore remain.  The Committee concluded, however, that a decrease to 16 hours from the current 18-hour limit would be justified to alleviate pressure on public authorities.

Time limits – publishing data on timeliness in complying with requests was recommended, as was a statutory extension period of 20 days for dealing with those requests.

Internal reviews –internal reviews are sometimes used as a delaying tactic and hence there was a view that there should be a statutory 20-day time limit for conducting them.

Research using animals – given that the Animal (Scientific Procedures) Act 1986 (ASPA) is currently under review, it was not deemed appropriate to make any recommendation on amending the FOIA to address universities’ concerns about disclosing information contained in ASPA licences.  The Committee was sympathetic to those concerns and encouraged institutions to rely on the “full protection” of the health & safety exemption (FOIA s38).  Recent cases, however, have indicated that such reliance will be difficult other than where the risk to safety is very specific.

Frivolous requests – currently institutions are not obliged to service vexatious requests.  Flagrantly trivial requests (in our experience which have ranged from the asinine: poltergeist activity, to the scatological: the number of toilet rolls used in a year), would not come within the provisions covering vexatious requests.  Though the Committee thought that there was a case for adding frivolous requests to the existing category, given their nuisance value, the view was, however,  that the problem was small and could be dealt with easily (i.e. by stating that no information relating to the issue was in fact held). 

Geraldine Swanton
Senior Associate Solicitor
Education Team
For and on behalf of SGH Martineau LLP
DD: 0800 763 1455
F: 0800 763 1001
International DD: +44 870 763 1385
E: geraldine.swanton@sghmartineau.com
W: www.sghmartineau.com

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