CONSTITUTIONAL RIGHTS LAWD10013 FREEDOM OF INFORMATION 1.

Background ECHR Art 10 (freedom of expression); refers to right to receive information (not +ve right to obtain info from State. Limited right), but does not create general right of access except in special circumstances, eg Gaskin v UK (1990) EHRR 36. In personal care home his whole life. Under Art 8, gave him right to see personal info about himself x Art 10 Compare position in other parliamentary democracies eg Australia, Canada, New Zealand, USA (Freedom of Information Act 1966 and Electronic Freedom of Information Act Amendments 1996); Government White Paper, Your Right to Know (1997) proposed full-scale, legally-binding Freedom of Information Act. 2. The Freedom of Information Act 2000 i. Framework Act came fully into force on 1 January, 2005 train public bodies on how to make info available and organising info. Certain provisions in force earlier, especially s.19: requirement for public bodies to adopt and maintain publication schemes, setting out details of material that is routinely available; S19-20: public bodies have to publish a publication scheme, which is done routinely. Publish updates on * info w/o request Section 1 provides general right of access (standing not needed didnt need to concern person obtaining info. Good for journalists/reporters) to information (not documents) held by public authorities. Person making request for information is entitled (a) to be informed in writing by public authority whether it holds information of description specified in the request; and if so (b) to have that information communicated to him; *Who does it apply to? - Public authorities listed in Schedule 1 to Act. Includes central government departments, local authorities, NHS bodies, schools and educational institutions, police. Over 400 such bodies in all. Does not cover private authorities/bodies problem: some public services are contracted out (just like in HRA) Request to be made in writing (s.8). Fees may be charged for provision of information (s.9), but normally waived if less than 450 (600 in central government). Requests over this amount may be refused (s.12), as may vexatious or repeated requests (s.14). Requests to be dealt with promptly and in any event within 20 working days of receipt (s.10). ii Exemptions 2 categories : (i) absolute (ii) public interest non-absolute 24 sections of exempt information (ss.21-44). In some categories, exemption is absolute, eg s.21, information which is reasonably accessible to public by other means; s.23, information relating to bodies dealing with security matters; s.32, information relating to court records; s.41, information obtained in confidence; s.44, information the disclosure of which is prohibited by law.

In other cases, a public interest test is applied (s.2). Public authority must show that information falls within (at least) one of the exempt categories, and that public interest in keeping the exempt information confidential outweighs the public interest in disclosing the information. Examples:- s.26: defence; - s.27: international relations; - s.29: the economy; - s.30: information relating to investigations and proceedings conducted by public authorities; - s.35: information relating to the formulation or development of government policy; - s.36: information the disclosure of which would or would be likely to prejudice the effective conduct of public affairs. Problems:- number of exempt categories; - breadth of some of the categories; - exclusions which relate to class, rather than content; - test of prejudice rather than substantial prejudice (compare Freedom of Information (Scotland) Act 2002). iii Enforcement Information Commissioner (supervises working of the Acts. He decides whether information is disclosed. Then appeals to Info Trib) and Information Tribunal (First-Tier tribunal Info Rights. Reweigh public interest test, exercises discretion) (s.18): the UKs independent authority set up to promote access to official information and to protect personal information. See http://www.informationcommissioner.gov.uk/. May issue decision notices specifying steps to be taken to comply with Act (s.50); enforcement notice (s.52), failure to comply with which may be contempt of court (s.54). But note s.53 Ministerial veto: - Minister may overrule decisions of commissioner/tribunal. Can only be challenged by JR. Quite wide
terms so, courts may not be effective in intervention

- Minister may issue certificate (which must be laid before Parliament) stating that he has on reasonable grounds formed the opinion that there has been no failure to comply with section 1 of Act. - Overrides decision and enforcement notice. - Used twice in 2009 on Cabinet minutes relating to Iraq war and devolution - More recently on Prince Charless (apparently lobbies ministers) letters to ministers ministerial veto used to justify that it was education of Prince Charless kingship and should not be revealed. - Royal correspondence = ABSOLUTE VETO 3. Assessment of Act Does Act provide genuine right of access to information, or do exemptions and ministerial override render statutory regime too discretionary to be of genuine value? Note; JulySeptember 2012 11,563 requests; 53% granted in full, 28% withheld in full. For useful analysis, see Justice Select Committee, Post-legislative Scrutiny of the Freedom of Information Act, HC 96, 2012-13,at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/96.pdf - the right to access public sector info is an * consti right - no evidence of generally harmful effect on the ability to conduct business in the public service - problems: costs, trivial requests, need for space to discuss policy freely

Other regimes - Freedom of Information (Scotland) Act 2002; substantial prejudice test; more limited ministerial veto to exceptional sensitivity. - EU. See below

4. The EU and Freedom of Information (in brief) New Art 255; right of access to Parliament, Council and Commission Documents. Also Regulation (EC) 1049/2001 of 30 May 2001, OJ L 145 of 31/05/2001. Lisbon Treaty: retains as Art 215 and extended to other institutions; new rights of access to information for national parliaments and greater openness for Council meetings. Art 42 of Charter of Fundamental Rights provide rights to access to docs.