Revising Freedom of Information Act Code of Practice (UK0070)

Objective: To enhance proactive transparency by making more information available in a more consistent way across the public sector; and to promote the effective operation of the FOI Act in the public interest by updating and expanding the Code of Practice.

Status quo: Public authorities are already required to publish a wide range of information proactively. The Independent Commission on Freedom of Information (the Commission) recognised that advances have been made, with specific reference to senior pay and benefits. The Commission also commented on the publication of FOI performance statistics by a range of public authorities, including central government. However, the Commission highlighted a lack of consistency. It noted a lack of reliable FOI performance data across the public sector as a whole. It also noted that while senior pay is published, details of expenses and benefits in kind are frequently not made available proactively. Further action is required to ensure enhanced and consistent standards of openness in these areas. The Commission also highlighted the need to review and update the Code of Practice issued under section 45 of the FOI Act. This allows the government to set out the practice that it considers desirable for public authorities to follow in meeting their FOI obligations. The Code of Practice was issued over a decade ago in November 2004, shortly before the FOI Act was introduced, and has not been updated since to reflect developments in best practice and case law.
The recent report by the Commission recommended that:
“The government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate.
“The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.”

Ambition: We are committed to making government more transparent, so taxpayers can hold it to account both on how money is being spent and how decisions are made. This commitment will implement proposals in the Commission’s report. It will improve and increase the range of information available to the public without having to make requests for it and will improve the operation of the Act. Further steps will be taken to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector. The public should not have to resort to making FOI requests to obtain it. We intend to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by summer 2016. We will also issue guidance in the revised Section 45 Code of Practice to set a standard that public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance, to better hold public authorities to account.

A revised Code of Practice will ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. Public authorities should have sufficient guidance to properly manage information access requests in order to protect the right of access to information the FOI Act provides. We aim to consult on and issue a new Code of Practice by the end of 2016.

8. Enhanced transparency requirements and revised Freedom of Information Act Code of Practice

Commitment Text: To increase transparency and improve the operation of the Freedom of Information (FOI) Act in the public interest.

Objective:To enhance proactive transparency by making more information available in a more consistent way across the public sector; and to promote the effective operation of the FOI Act in the public interest by updating and expanding the Code of Practice.

Status quo:Public authorities are already required to publish a wide range of information proactively. The Independent Commission on Freedom of Information (the Commission) recognised that advances have been made, with specific reference to senior pay and benefits.

The Commission also commented on the publication of FOI performance statistics by a range of public authorities, including central government. However, the Commission highlighted a lack of consistency. It noted a lack of reliable FOI performance data across the public sector as a whole.

It also noted that while senior pay is published, details of expenses and benefits in kind are frequently not made available proactively. Further action is required to ensure enhanced and consistent standards of openness in these areas.

The Commission also highlighted the need to review and update the Code of Practice issued under section 45 of the FOI Act. This allows the government to set out the practice that it considers desirable for public authorities to follow in meeting their FOI obligations. The Code of Practice was issued over a decade ago in November 2004, shortly before the FOI Act was introduced, and has not been updated since to reflect developments in best practice and case law.

The recent report by the Commission recommended that:

“The government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate.

“The government should also review and update the Code to take account of the ten years of operation of the Act's information access scheme.”

Ambition:We are committed to making government more transparent, so taxpayers can hold it to account both on how money is being spent and how decisions are made. This commitment will implement proposals in the Commission's report. It will improve and increase the range of information available to the public without having to make requests for it and will improve the operation of the Act.

Further steps will be taken to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector. The public should not have to resort to making FOI requests to obtain it. We intend to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by summer 2016. We will also issue guidance in the revised Section 45 Code of Practice to set a standard that, public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance, to better hold public authorities to account.

A revised Code of Practice will ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. Public authorities should have sufficient guidance to properly manage information access requests in order to protect the right of access to information the FOI Act provides. We aim to consult on and issue a new Code of Practice by the end of 2016.

Milestones

1. Enhanced transparency measures, including statistics on the operation of the FOI Act and data about senior pay and benefits (July 2016- December 2016)

2. Consult on and issue new FOI Code of Practice (July 2016- December 2016)

Responsible institution: Cabinet Office

Supporting institutions: 360Giving, ARTICLE 19, Campaign for Freedom of Information, mySociety, The Open Data Institute, Transparency International UK

Start date: July 2016

End date: December 2016

Commitment Aim:

The commitment concerned the updating of the UK's Freedom of Information (FOI) Act 2000, especially the section 45 code of practice that sets guidance on the law which has not been updated since the Act came into force in 2005.^{[Note 72: Department for Constitutional Affairs, Guidance: Code of practice on the discharge of public authorities functions under part 1 of the Freedom of Information Act 2000, https://www.gov.uk/government/publications/code-of-practice-on-the-discharge-of-public-authorities-functions-under-part-1-of-the-freedom-of-information-act-2000 ]} The commitment was rooted in a Supreme Court judgement from March 2015 on the government's veto power, and a subsequent review of the FOI law by the independent Burn's Commission in 2015-2016.

The government also agreed to a series of other recommendations, including greater proactive publication of salaries; and publication of more statistics on FOI performance for bodies with more than 100 employees.^{[Note 73: Independent Commission on Freedom of Information Report, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504139/Independent_Freedom_of_Information_Commission_Report.pdf, and Cabinet Office, ‘Written statement to Parliament: Open and transparent government', https://www.gov.uk/government/speeches/open-and-transparent-government ]}

The guidance would make for more consistent statistics on FOI across the UK (rather than the limited monitored bodies that publish statistics at present). It would also limit the time allowed for extensions of the 20-day FOI period and bring about more proactive publication of salary details for senior board level and equivalents - though what this means may vary. The S.14 explanation would make clear when the ‘vexatious' requests section can and should be used, for requests that have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress. The government argues that this fits with a more proactive publication of data.^{[Note 74: Interview with Rachel Anderson, Head of FOI, Cabinet Office, 13 September 2017. ]}

Status

Midterm: Limited

The Code was published but was 16 months behind schedule. According to the government, although there were no particular obstacles, it took time to get the different parts of the code right, especially as the government wanted to create a comprehensive document.^{[Note 75: Rachel Anderson, Head of FOI, Cabinet Office, 13 September 2017.]} CSOs felt that the delay on FOI showed the law was not a priority. Some of the recommendations were downgraded from what the inquiry called for, as some of the original ones required primary legislation (notably the amended section 77 that covers what happens if a public authority attempts to destroy documents). Other recommendations were not included, such as the online publication of details of past requests, answers by any public body with more than 100 people or limiting the time available for internal reviews of requests to 20 days.^{[Note 76: Email exchange with Maurice Frankel, Director of the Campaign for Freedom of Information; Interview with Maurice Frankel, Director of the Campaign for Freedom of Information, 26 September 2017. ]}

End of term: Complete

The government issued the consultation and draft ideas for the paper by the end of the action plan cycle, albeit more than a year behind schedule. An updated and expanded Code was then issued slightly outside of the cycle in July 2018.^{[Note 77: Code issued in July 2018 (is this outside commitment?) Cabinet Office (2018), Freedom of Information Code of Practice, https://www.gov.uk/government/publications/freedom-of-information-code-of-practice ]} While not all departments had yet published the pay and benefits data outlined in the action plan, several government bodies were in the process of doing so and many intend to publish their data in the coming months.^{[Note 78: IRM researcher correspondence with FOI experts Paul Gibbons and Lynn Wyeth, February 2019.]} The Campaign for Freedom of Information (CFOI) argued that the earlier draft code was “weaker in key respects than the 2004 version of the code it is intended to replace” and that “the new code should be substantially improved before it is introduced.”^{[Note 79: CFOI (2018), Revised Freedom of Information Code of Practice,}

5 February 2018, https://www.cfoi.org.uk/latest-news/page/2/ ] At least one of CFOI's concerns, about advice in vexatious and costly cases, appeared to have been improved. However, there were continued concerns from CFOI regarding how certain parts of the old code were missing, including sections of the code that had played an important part in more than 120 appeal rulings.^{[Note 80: See comments by CFOI on the draft 4th action plan]}

Did It Open Government?

Access to Information: Marginal

Civic Participation: Did not change

The commitment aimed to open government by publishing statistics about FOI itself and make the request process clearer, thus generating new information.

The new Code, as promised under the commitment, clarified and updated areas around access, cost limits and vexatious requests, as well as guidance on contractual data. Two important additions were included: One concerned publication of pay and hospitality data for senior management in public institutions (defined as ‘staff at Director level and above'), and another mandated that all bodies with more than ‘100 Full Time Equivalent (FTE) employees...should, as a matter of best practice, publish details of their performance on handling requests for information under the Act'. This builds a far greater picture of FOI performance, given that at present only selected central government and monitored bodies collate data. The commitment had a marginal impact on access to information. As of the time of writing, only a few local authorities had published data on FOI requests, though experts believed that the timing of the publication of the code meant most bodies would begin to publish the data in April or May 2019.^{[Note 81: Correspondence with FOI experts Paul Gibbons and Lynn Wyeth, February 2019. One council, Leicester City Council, is already publishing it, http://data.leicester.gov.uk/explore/dataset/freedom-of-information-foi-code/table/?sort-period]}

The government did not promote any greater public involvement during the implementation of this commitment.

Carried Forward?

This commitment will continue outside of the action plan into 2019 and beyond. The IRM's midterm report recommended that the Code be implemented as soon as possible, along with Lord Burn's original recommendations.