The Independent Commission on Freedom of Information (FOI) have released their much anticipated final report. Following widespread concern that major restrictions to the FOI Act were on the horizon, the ‘call for evidence’ received over 30,000 submissions; 60 of them from civil society organisations. This included a response from NCVO, based on consultation with our members.
Good news
No Charges for FOI requests
Quelling widespread fears, the Commission decided there was little justification for charges. Instead, they urged stronger guidance on vexatious requests and a new code of practice that makes the obligations of public bodies clearer. This will make it easier to dismiss wasteful requests and reduce the burden on public authorities.
This is good news for charities. FOI requests have proven a vital tool for unearthing important data on their beneficiaries and providing an evidence base for campaigns. Introducing a fee for FOI requests would have been hugely discouraging for already cash strapped charities.
More proactive data release
Public bodies that have 100 employees or more are now required to publish their FOI compliance statistics. They must also publish their response to requests that were successful, saving the public and authorities’ time and resources. This will be welcomed by charities, which often use FOI to gain access to data on their beneficiaries that is otherwise unavailable. The Information Commissioner will be responsible for making this happen and will be given extra resources to do so. Specifically, data on the pay of senior executives is to be published routinely.
At NCVO, we have long argued that charities should publish their senior executives pay levels on their website. We welcome this move to increase transparency and encourage charities to do the same.
External Reviews – statutory time limit
To tackle the frequent delays to FOI responses, there have been changes to internal review time limits and extensions. Public authorities can now only ask for an extension when the FOI request is:
- complex
- requires a high volume of work
- needs third party consultation in order to decide if it is the public’s interest.
The maximum extension is 20 days, instead of the ambiguous ‘reasonable’. If an FOI request is refused, the requester can ask for an external review and the public body must respond within 20 days. This will streamline the FOI process for individuals and organisations across sectors.
Bad news
Not all of the recommendations are positive. The Commission have also suggested that:
- there should only be one stage of appeal, removing the first tier tribunal and leaving only the upper tribunal. The FOI Directory has written a useful analysis of why this is so worrying
- the cabinet veto should be strengthened so that it can overturn a decision by the Information Commissioner. This could only be challenged via a judicial review.
These changes still leave space for appeals and challenges to decisions but it does restrict the scope for this.
Mixed news
No extension to charities – unless the contract is worth over £5 million
Although not part of the Commission’s call for evidence, many respondents to the consultation asked for the Act to be extended to private and voluntary sector providers of public services. Cabinet Office Minister Matthew Hancock has also called for the FOI Act to be extended to include charities in receipt of government funding.
As the extension of the Act was not included in the terms of reference, the Commission could not provide an explicit recommendation on this. But they did express their opinion going forward that FOI should apply to all providers of public services, including charities with:
- one, single contract worth £5m
- multiple contracts with a single public authority that total £5m in value over one financial year
- contracts five years or more in length.
The review concluded that there was no compelling evidence in favour of bringing charities directly under FOI legislation but rather all information on contract performance should be considered ‘held on behalf’ of the public authority, meaning that the public body is responsible for processing the request. However, there would still be a requirement for charities to supply this information on demand. Recognising the additional burden this would place on providers, the Commission recommended that it should only apply to new contracts signed after enabling legislation came into force so that the cost could be considered in advance.
This would only affect the small proportion of voluntary sector organisations that bid on this scale. A precise figure, unfortunately, is difficult to determine due to the poor quality of publicly available data on government contracting. Quite simply, the government doesn’t have a comprehensive and reliable list of which organisations receive more than £5m in contracts
We have consistently argued for much greater transparency in this area. For this policy to be workable in practice, it is essential that our proposals on contracts finder and the transparency clause are implemented.
Given that this proposal was not included in the Commission’s call for evidence, it is essential that government commits to a proper consultation with the sector before proceeding. My colleague Charlotte has set out NCVO’s views on the topic.
Next steps
Overall the report is a positive result for charities, especially considering the proposals on the table in December. But now it is more important than ever for charities to be proactively transparent and accountable to avoid the imposition of a potentially extremely burdensome FOI extension.
Kimberly McIntosh was trainee policy officer at NCVO. She worked on the Freedom of Information response and administered the Campaigning Advisory Group secretariat. 
