UK FOI Act implementation: lessons learnt

Francesca FanucciSeminario Internacional “Hacia una nueva realidad

institucional de acceso a la información pública en Chile”Santiago de Chile, 5-6 November 2007

UK FOI Act (FOIA):• Adopted in November 2000 – entered into force in January 2005

(five-year preparation period!)

• Covers ALL public authorities in UK except Scotland:– Authorities listed as “public” in Act

(Central government, parliament, local authorities, schools, police services…) – Private companies wholly owned by public authorities

…more than 100,000 bodies (!)

• Implemented across all public bodies simultaneously (‘big bang’ approach)

• Fully retrospective

Obligation to provide information

Reactive Proactive

In response to requests Through “publication schemes”

Information Commissioner’s Office (ICO)

Approved by

In case of refusal, complaints are handled by the

Appeal to

Information Tribunal

High Court

Point on law:

Information Commissioner’s Office

• Handling complaints on refusal to disclose information

• Raising awareness

• Giving guidance to public authorities

• Promoting best practices by public authorities– Endorsement notices– Practice recommendations

Government Access to Information Central Clearing House

• Set up in January 2005 (Ministry of Justice) in order to:

– “ensure a consistent government-wide position” on requests which have gone to more than one department, and potentially precedent-setting cases

– provide guidance on all sensitive cases with a potentially high public profile

– align the response to such cases with “government policy and guidance”

– work closely with the Cabinet Office on cases:• intrinsic to the operation of collective responsibility, cabinet and the

role of ministers• cases of “personal interest” for Prime Minister

UK FOIA Act two years on

• “…the single most significant act of any Government, in improving transparency, accessibility and accountability. It is the platform for building an improved relationship between the citizen and the state.” [Speech by Constitutional Affairs Secretary Lord Falconer at the Canadian High Commission, London, 6 March 2007]

• Government’s progressive review of existing legislation on classified information [Department for Constitutional Affairs, Review of Statutory Prohibitions on Disclosure, 2005)

Public attitude on FOIA

Even though:

• 95% individuals said they had not requested any information held by government or public authorities.

ICO, 2006 Annual Track survey

Examples of civil society use of FOIA:

• Media– The Independent request to government to

produce policy advice received for military intervention in Iraq (May 2006)

• NGOs:– Friends of the Earth UK’s requests on climate

change, GM crops, waste management and US “ghost ships” sent to the UK for toxic disposal (2005-2007)

Problems with FOIA implementation

• Delays on responses to FOI requests by public authorities:– “Big bang” approach = floods of requests!– Time limits: 20 days + extension for a ‘reasonable’

period of time (‘public interest’ test) = extension abused!

• Government’s “Clearing House” often freezes FOI responses from government departments

• “Publication schemes”: list of existing publications already available rather than more disclosure

Problems with FOIA implementation

• Backlog of complaints still pending at ICO:

= No time/resources to promote FOI awareness and best practice

ICO Progress report, 2007

Threats to FOIA

• Government cuts on ICO’s budget– “…the Information Commissioner should become

directly responsible to, and be funded by, Parliament.” [House of Commons, Constitutional Affairs Committee Report, 24 June 2007]

• Proposed restrictions:– Increasing fees for requesting information (Government consultation)– Exemption for Parliament and MPs’ correspondence (MacLean bill)

• Ministerial “veto” on ICO/Information Tribunal requiring a government department to release information on public interest grounds

Civil society and FOI implementation

Lessons Learnt

Capitalising on crisis & political change

Support from key politicians/officials

Public support

Active media involvement

Public support

• Public awareness on how FOI affect their issues/livelihood is crucial

• Link FOI principles with “real issues” (e.g., war in Iraq)

• Engage different level and sections of civil society, including at grass-root level

• Use the media, in different forms

Active media involvement

• Media needs to realise that FOI is also their issue

• Media must be regarded and cultivated as key actor to raise awareness and influence public opinion– E.g.: Campaign against Maclean bill

Crisis and political change

• Capitalise on national/local crisis – E.g.: ICO order to disclosure advice received

by Government on the legality of military action in Iraq

• New government/election time– E.g.: pressure on PM Gordon Brown to

withdraw proposed FOIA restrictions

Support from key politicians/officials

• Talk in their language: stress the benefit of FOI for them (image, efficiency, other political gain)

• Educate politicians & officials on FOI

• Persistent lobbying

• Personal relationships count

Good news…• June 2007 - MP Tom Brake introduces bill to

amend FOIA:– removing ministerial veto on decisions of the Information

Commissioner and Information Tribunal– limiting the time allowed for public authorities to respond to

requests involving consideration of the public interest test – widening the definition of public authorities

• 25 October 2007 - UK Government announcement: – Dropped proposals to restrict FOIA– Opened consultation on extending FOIA scope to private bodies

exercising public functions (e.g., public procurement contractors) • Deadline: February 2008• New proposal for FOIA amendments?

Role of civil society after entry into force of Chilean FOI Act:

• Monitor and test the implementation from the start

• Raise public awareness through media and public meetings

• Offer training courses on FOI Act, international standards and best practices

• Use network, expertise, pressure of international NGO as well as other countries’ experiences

• Supporting litigation at national/international level

• Advocating for adoption of supporting legislation and/or repeal of conflicting legislation

UK FOI Act implementation: lessons learnt

Francesca FanucciSeminario Internacional “Hacia una nueva realidad

institucional de acceso a la información pública en Chile”Santiago de Chile, 5-6 November 2007