The Information Commissioner's Office (ICO) appear to be exploring how to restrict the public’s rights under the Freedom of Information Act 2000 (FOIA).
A disclosure by the ICO made - ironically enough, under FOIA - suggests so. It proposes a “suite of provisions” which would have the effect of “reducing the impact of requests on [public authorities] and the ICO”. Among the proposals floated (which, it should be noted, would need primary legislation to effect) are:
- restricting the right to make requests to UK residents
- making requesters have to provide a physical address
- making requesters have to provide ID to make a request
- limiting the number of requests a person can make to an individual authority
- allowing individuals (and not just requests) to be labelled “vexatious”
- allowing public authorities to refuse requests when they are not in the public interest (alternatively, allowing the ICO to decline to investigate complaints where the initial requests were not in the public interest)
- removing the right to appeal to the First-tier tribunal (so a challenge to the ICO could only be on a point of law, rather than on merits)
There are some proposed minor crumbs of comfort for the public, such as statutory time limits for internal reviews, and giving the ICO increased powers to audit authorities’ compliance, but the thrust is unavoidably towards limiting the public’s rights.
The proposals are contained in a note of a discussion (the implication is that this was an internal ICO discussion) that took place in March. The note is from an ICO policy adviser, to Warren Seddon, the Director of FOI and Transparency.
Remarkably, these proposals appear to have have been developed on the ICO’s initiative. In response to enquiries, an ICO spokesperson explained that the proposals were simply an internal sharing of ideas. An ICO spokesperson said:
"Over the past year, there has been a sharp rise in FOI related complaints. FOI practitioners have told us clearly that the rise in request numbers is changing the reality of their work. They are seeing higher volumes of requests, a greater complexity of request, and more cases that need careful clarification before they can be processed.
“Our aim is to support and maintain effective access to information for everyone, all the while making sure FOI services remain workable and resilient, and we are regularly in touch with government to support this aim."
Whilst it is commonly accepted that numbers of FOIA requests have steadily increased - statistics from government suggest that last year saw a 14% increase in requests to central government - and responding to them inevitably requires resource, there is a strong argument that regular use of FOIA is actually the mark of a mature democracy, an engaged public and a transparent society.
But another question arises: it’s far from clear that it is the ICO’s role to propose legal changes to FOIA. The Act itself tasks the ICO with regulating, and with promoting good practice, but nothing expressly provides that the ICO should consider measures to restrict rights under the Act. The ICO did not response to a specific question about this point.
This firm spoke to Maurice Frankel, Director of the Campaign for Freedom of Information, and one the main drivers of FOIA when it was enacted. He said:
"This feels more like the result of a brainstorming session than a shortlist of considered proposals. But some of its suggestions would undoubtedly weaken the FOI system. The ICO wants the power to refuse to investigate complaints where there is little public interest in the information. This would allow it to refuse to act on a complaint involving a private interest even if it addresses a serious threat, such as unfair dismissal or nuisance from a nearby property. Such requests could eventually be squeezed out of the FOI system altogether. Several of the proposals would probably have only have a minor impact on request numbers but add to officials’ workload."
Perhaps the most concerning aspect of this is the lack of transparency: if there are to be proposals to restrict the public’s right to know, they should be developed and debated openly. And consider this - without FOIA, would the public even know that the ICO had been engaged in this exercise?