The Constitution Unit


Monthly Update: March 2012

The UK

Post-legislative scrutiny continues

Throughout March the Justice Select Committee has continued to scrutinise the Freedom of Information Act (A summary of earlier witness evidence can be found here.) Oral evidence has been submitted from a range of witnesses including the current Information Commissioner Christopher Graham and former Cabinet Secretary Gus O'Donnell.

Among other points, Christopher Graham was critical of David Cameron's "grudging" stance on Freedom of Information, partly in response to the Prime Minister's recent remarks describing FOI as something that "furs up the arteries of government."

In contrast, Lord O'Donnell, a familiar opponent of the existing legislation, explained to the committee that:

"The problem is the multiciplicy of grey areas… we need some principles. At the moment, the great cost from FOI is uncertainty. Nobody knows whether a piece of paper, when it is written down, is going to be public or not. There is going to be some panel of people - who may never have worked closely with ministers or in central government - who are going to make this decision. That's what worries me, the uncertainty, if we add clarity, get rid of the grey areas, this is either exempt or it's not, you can decide where you want to put the line."

On Twitter, The Campaign for the Freedom of Information replied "Safe space Gus O'Donnell: 'We haven't got an exemption for policy advice'. There are two exemptions & a veto! #FOI #saveFOI

The Guardian has compiled a list of 366 FOI requests (one for each day of the year!) and what they tell us to highlight how FOI is used by the public. Also featured in the same newspaper this month was an editorial highlighting the importance of protecting Freedom of Information legislation:
"… in the seven years since it came into force, the act has shed light on data the authorities did not choose to reveal. FOI enabled the Guardian to uncover details of the wildly varying death rates after vascular surgery, and the number of Afghan civilians killed by British forces in Afghanistan. The tribunal affirmed its importance in facilitating investigative journalism. At a time when serious, well-sourced reporting is at a premium, undermining FOI would be a retrograde step."

Michael Gove appeals ICO decision

Education Secretary Michael Gove is taking the ICO to a tribunal to challenge a ruling that he must release data from emails sent using his wife's email account. The ICO has stated that the information should be released as involves "the business of the public authority", where as Mr Gove maintains that it was a "political discussion", and not covered by the Act as he had sent it through a private account. Maurice Frankel, director of the Campaign for Freedom of Information, said that: "If all you have to do to avoid FoI is switch to Hotmail or claim that the document has any link to 'politics', the [FOI 2000] act would be a hollowed-out shell."

Central government FOI response times have improved

According to the ICO, the Ministry of Defence and the Cabinet Office have improved their response times to freedom of information requests, however six other authorities, including the Welsh government, have been "required to sign undertakings committing them to speeding up the time it takes to respond to requests."

MoJ Research and the cost of FOI

Ipsos Mori have published research on behalf of the Ministry of Justice into Freedom of Information. They have found that the mean average cost of an FOI request is £184, although the modal average is noticeably lower. They observed that "When focusing on the distribution of volume and costs, it does appear that a small minority of expensive requests account for a notable proportion of the total costs involved." By multiplying this average figure by the number of requests received across central government departments, they estimate that FOI costs the tax payer £8,456,272 per year in staff time.

Estimating the cost of FOI is frought with methodological difficulties. In our recent study of local government, we explicitly highlight the limitations of the methods we employed. Furthermore, there are different ways of estimating the cost of FOI, of which the Ipso Mori study is only one example; Our 2010 study of the cost of FOI around the world illustrates this point.

For example, the Ipso Mori research describes the cost per year, despite only drawing on two months' worth of data and acknowledging that the volume of requests has been steadily increasing in recent years. Perhaps more problematic is the assumption that all 21 central government departments operate in the same way; during the course of our research, we found that different public authorities vary greatly in the time they take to perform tasks and processed associated with FOI, something that the ICO has also evidenced with specific reference to central government.

On the subject of costs, the Daily Telegraph has produced a graphic comparing the cost of FOI to other departmental spending in central government.

Bush, Blair, and Thatcher

The ICO has ordered the FCO to release redacted transcripts of conversations between George Bush and Tony Blair from March 2003. The FCO is appealing the decision.

Martin Rosenbaum has reported on how recently disclosed Cabinet Officer papers reveal how Margaret Thatcher's government was misinformed about the causes of the Hillsborough football stadium disaster. The Information Commissioner ordered the disclosure of the documents last year and were initially the subject to an FOI request by the BBC; The government has since agreed to publish the material via an independent panel later this year.

FOI around the world


Scrutiny of the cost of FOI is not limited to the UK. In Australia, Information Commissioner John McMillan has recommended doubling some freedom of information processing charges and applying new fees to requests.


Further to our country profile last month, the Malaysian federal government has confirmed it has no plans to introduce a freedom of information act because this is "already provided for in the constitution." However, very few observers agree with this claim. The Malaysian Centre for Public Policy Studies points out that "Freedom of information is not guaranteed in Malaysia either constitutionally, nor through any specific legislation."


Freedominfo.org has written a good overview of the draft FOI law proposed this month. Spain is the only large country in the European Union without any existing freedom of information legislation.

In a separate development, further to proposed changes to EU privacy law outlined earlier this year and the controversial "Right To Be Forgotten (RTBF)" agenda, Spain's highest court has asked the European Court of Justice whether or not European citizens can lawfully ask Google to delete data from their search engine.

Latest ICO cases here

Latest First Tier (Information Rights) decisions here.