The Freedom of Information Act 2000 (hereinafter referred to as The Act) is a statute enacted by the UK Parliament. It is an instrument meant to implement and put into place the Freedom of Information legislation and give the same a national outlook in the UK. The most basic of its provisions relate to the ‘Right to know’ which it introduces with regard to the conduct of affairs by public bodies (Birkinshaw, p. 119).
The Act was passed in November 2000 and it gives general and full access starting January 2005 to all public records held by various authorities. The Act also gives exemptions to that right as well as places certain duties on public authorities. The Act was enacted to replace the Open Government Code of Practice which had been in use since 1994.
Before the 1997 elections, the Labor Party came up with a manifesto which among other commitments, promised to review the state of the freedom of information in the country and especially with regard to the citizens’ right to know. The Act’s provisions came into force in January of 2005.
The Act basically gives the citizens an unprecedented right to ask or demand information of a public nature from the relevant authorities and also to ask for any personal information they may have about someone. For the first time, one can access any information that is held by the country’s numerous public bodies.
Unlike many contemporary pieces of legislation, The Act has been enacted to apply retrospectively. This means that it also covers all the information that was in the possession and control of the public bodies before The Act was enacted on top of all the information that the said bodies will acquire henceforth (Davis & Sigmund, p. 23).
This means that all the historical records and information kept by various authorities have been made public records and can be accessed by citizens on request and within a time limit of one to three months depending on the topic of inquiry for example. This gives the bodies a reasonable amount of time to source the information and to present the same to the person who made the inquiry.
The information requested must not be of such a nature as to cause harm or endanger the nation or its citizens. For example, information that is pertinent to national security or the enforcement of the law would be too sensitive to give out in many cases. In such instances, the information will be denied on those grounds but taking into account the appropriate exemptions. Even in such instances, the Information Commissioner has the power to, later on, force the disclosure of such information (Birkinshaw, p. 126).
Where sections of the information are exempt, the record of information should clearly indicate the extent to which there is exempt information that cannot be disclosed. If all the information is withheld, the public body is compelled to give reasons as to why the information has been withheld.
If the applicant requesting access is not satisfied with the reasons, they have the right to appeal. They may also appeal if they think that the charges for information are unfair.
When a person has made a request for information, the authority so requested is supposed to inform the person in writing whether the information is available. The authority can also ask for further information from the person in order for example to clarify the request and to get the right information requested. The authority is not obliged to give information where it has asked for further information which has not been given by the person requesting the information.
The gives citizens a right to access such information as is from time to time held by public authorities. The authorities covered by The Act’s provisions are set out in Schedule 1 of the act.
There are a number of exemptions to the provisions of the act. Some of these are absolute meaning that in some cases the ‘right to know’ can be overridden under certain circumstances.
There are also some exemptions that are qualified. This means that the public authority in such cases has to decide whether the public interest in disclosing the relevant information outweighs the public interest in maintaining the exemption.
There is also set up under the act the position and office of the Information Commissioner. The mandate of this office is that of an ombudsman and therefore one who feels aggrieved by a public body in the pursuit of information can appeal to the commissioner. The commissioner can then make orders that he/she deems appropriate in the circumstances of the case. The Information Commissioner’s orders can be appealed to a specialist tribunal. This is the Information Tribunal. In some cases, the Government has the power to override orders of the Information Commissioner.
Any person can request information under the act. The definition of a person, in this case, is that of a legal person. This act therefore also covers and includes legal entities such as companies. A private person in their own private capacity or a company through its employees for example can equally request public authorities for information.
It is not necessary for persons making requests to mention the act in order to invoke its protection. One is entitled to the information by virtue of being a member of the public and one does not, therefore, need to mention the act when making a request. In the same vein, an applicant does not have to give a reason for their request. All they need to do is to give the information they would like to the public authority and make any clarifications requested by the authority in order to process the request quickly and to give the applicant the proper information they seek. There are some requests for information that fall outside the Freedom of Information Act. They are instances in which requests for information by an applicant to a public body are processed under other legislation including other Acts of Parliament. I have discussed some of them below. The first case refers to instances where persons have made requests as individuals for access to their own personal information. These are dealt with outside the act in most cases. They are dealt with under the Data Protection Act of 1998. This is done once it has been determined that the exemption for first-party personal data is engaged, although some key provisions remain applicable. For example, one retains the right to complain to the Information Commissioner where one feels aggrieved for example by denial of information by the public authority (Davis & Sigmund, p. 33).
The second instance relates to cases where requests for information about matters concerning the environment have been made. These are dealt with by the Environmental Information Rules of 2004. They are similar to the act’s provisions but they differ in a number of ways.
There has been a great deal of criticism of the Act especially from academia and other circles as well. The first and probably the trickiest relates to the exemptions to the applicability of the act and its provisions. It has been argued by some that the range of those exceptions is too wide; some have called the exemptions wider than those existing in any similar Freedom of Information Act in any democratic nation in the world. (Rodney Austin)
The second point of criticism relates to the fact that The Act gives people the right to access public records and not necessarily the information in such records. There appears therefore to be the likelihood that public bodies could censor or even simply destroy those portions of the records that they would not want people to see. This would therefore not be as helpful to those seeking the information as a readily open and accessible system of information. (Rodney Austin)
The Freedom of Information Act as we know it is essentially a diluted version of what was originally written and presented before Parliament. A number of alterations were made to the original Bill. For example, there was a dilution of the obligations to establish publication schemes. This meant that there is no obligation on the part of public bodies to publish information of any specified type. This has hampered the extent to which public information is accessible to persons who would need it from time to time. (Rodney Austin)
Thirdly, there is in place a qualification allowing the Minister to interfere in the application of the Act. There is a veto of sorts which basically empowers the Minister to block certain attempts by an applicant to get information either of a certain kind or relating to certain matters. This greatly undermines the Act. (Rodney Austin)
One of the key elements of the Act is to readily make information accessible on demand by members of the public and other legal persons. It has been enacted to do this in various ways including through overriding other previous rules and regulations relating to access to information and which would have made access to such information tricky.
One of these regulations is the notorious Thirty Year Rule. This is a rule relating basically to public documents that require the same be kept away from the public for thirty years from the year in which they were made. This would basically mean that those documents of a public nature that have been prepared and used in 2008 would be released for access by the public in thirty years that is in 2038.
This rule was mainly used by governments to keep government secrets away from the public domain for the period that those public officials involved in certain circumstances are in power. It was also used to circumvent the law and justice through the application of Limitation of Actions rules and provisions. Therefore those actions which would ordinarily have been pursued are let go of since their time limitation before the law has expired. (Information Access Article)
The Act places a legal obligation on public authorities to start and keep or maintain publication schemes. These would serve the purpose of routinely releasing important information. Some of this information includes annual reports and accounts such as those relating to or pertinent to public bodies. These publication schemes must be approved by the Information Commissioner.
Public authorities have u to 20 days to process requests for information, which time can be extended depending on the subject matter or on the agreement between the applicant and the authority. Such dialogue is encouraged in order to find out exactly what information the applicant wants in order for them to be served better by the public authority.
Another limitation on the application of the act with regard to giving the public access to information relates to the cost barrier imposed on requests. If the total cost of a search for information by the public body exceeds 600 pounds the body can decline to carry it out. This includes the man-hours spent by employees of the public authority carrying out the search.
Yet another limitation comes under the proposed Freedom of Information (Amendment) Bill of 2007. This bill was introduced as a private member’s bill to the Commons. It proposes that MPs be exempted from the provisions of the Act of 2000 among other proposals. Therefore as introduced, the bill seeks to ensure that MPs’ correspondence is exempt from freedom of information regulations.
It is currently estimated that over 100 000 requests are lodged yearly for information that is held by public authorities. Of this figure, 60 % are requested by private persons in their capacity as such while journalists in their line of work and business inquiries account for a further 30 % of the figure. (The Economist)
It has been estimated that the Act is projected to save upwards of 10 million pounds a year that is normally wasted in searches for information by streamlining the processes of such searches as well as the procedure for the same. (The Economist)
Works Cited
Charles N. Davis and Sigmund L. Splichal (Ed): Access Denied: Freedom of Information in the Information Age, edited by, Iowa State University Press, 2000. 12-45
The Freedom of information Act.
Peter Birkinshaw: Freedom of Information: the Law, the Practice and the Ideal Northwestern University Press, 3rd edition (2004) (a focus on England) 110-160
Rodney Austin; Freedom of Information: A sheep in wolf’s clothing? The Economist: “Every expense spared” dated 2006 edition Number 8532, page 46.