Address for response c/o
Campaign for Freedom of Information
Unit 109
Davina House
137-­149 Goswell Rd
London EC1V 7ET

The Rt Hon David Cameron MP
Prime Minister
10 Downing Street
London SW1A 2AA

21 September 2015

Dear Prime Minister,

We are writing to express our serious concern about the government’s approach to the Freedom of Information (FOI) Act and in particular about the
Commission on Freedom of Information and the proposal to introduce fees for tribunal appeals under the Act.

It is clear from the Commission’s terms of reference that its purpose is to consider new restrictions to the Act. The Commission’s brief is to review the Act to consider: whether there is an appropriate balance between openness and the need to protect sensitive information; whether the ‘safe space’ for policy development and implementation is adequately recognised and whether changes are needed to reduce the Act’s ‘burden’ on public authorities. The ministerial announcement of the Commission’s formation stressed the need to protect the government’s ‘private space’ for policy-­making.1 There is no indication that the Commission is expected to consider how the right of access might need to be improved.

The Commission’s five members consist of two former home secretaries, Jack Straw and Lord Howard of Lympne (Michael Howard), a former permanent secretary, Lord Burns, a former independent reviewer of terrorism legislation, Lord Carlile of Berriew (Alex Carlile) and the chair of a regulatory body subject to FOI, Dame Patricia Hodgson. A government perspective on the Act’s operation will be well represented on the Commission itself.

One of the Commission’s members, Jack Straw, has repeatedly maintained that the Act provides too great a level of disclosure. Mr Straw has argued that the FOI exemption for the formulation of government policy should not be subject to the Act’s public interest test.2 Such information would then automatically be withheld in all circumstances even where no harm from disclosure was likely or the public interest clearly justified openness. Mr Straw has also suggested that the Supreme Court exceeded its powers in ruling that the ministerial veto cannot be used to overturn a court or tribunal decision under the Act unless strict conditions are satisfied.3 He has argued that there should be charges for FOI requests and that it should be significantly easier for public authorities to refuse requests on cost grounds.4 Mr
Straw’s publicly expressed views cover all the main issues within the Commission’s terms of reference. Speaking in the Commons shortly before the Commission’s appointment, the Justice Secretary, Michael Gove, expressly cited Mr Straw’s views with approval saying that he had been ‘very clear
about the defects in the way in which the Act has operated’.5

Another member of the Commission is Ofcom’s chair, Dame Patricia Hodgson. In 2012, when she was its deputy Chair, Ofcom stated that ‘there is no
doubt’ that the FOI Act has had a ‘chilling effect’ on the recording of information by public authorities. One of the Commission’s priorities is likely to be to consider whether there has been such an effect — and whether the right of access should be restricted to prevent it. Ofcom has also
called for it to be made easier for authorities to refuse requests on cost grounds and for the time limits for responding to requests to be increased.6

An independent Commission is expected to reach its views based on the evidence presented to it rather than the pre-existing views of its members. Indeed, in appointing members to such a body we would expect the government to expressly avoid those who appear to have already reached and expressed firm views. It has done the opposite. The government does not appear to intend the Commission to carry out an independent and open minded
inquiry. Such a review cannot provide a proper basis for significant changes to the FOI Act. The short timescale for the Commission’s report, which is due by the end of November, further reinforces this impression. At the time of writing, half way towards the Commission’s final deadline, it has so far not even invited evidence from the public.

The FOI Act was the subject of comprehensive post-legislative scrutiny by the Justice Committee in 2012 which found that the Act had been ‘a significant enhancement of our democracy’ and concluded ‘We do not believe there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits’. We question the need for a further review now.

We are also concerned about the government’s proposal to introduce fees for appeals against the Information Commissioner’s decisions.7 Under the proposals, an appeal to the First-tier Tribunal on the papers would cost £100 while an oral hearing would cost £600. The introduction of fees for employment tribunal appeals has led to a drastic decrease in the number of cases brought. A similar effect on the number of
FOI appeals is likely. Requesters often seek information about matters of public concern, so deterring them from appealing will deny the public information of wider public interest. On the other hand, fees are unlikely to discourage public authorities from challenging pro-disclosure decisions, so the move will lead to an inequality of arms between requesters and authorities. Given that the Ministry of Justice and the Justice Committee have recently begun to review the impact of employment tribunal fees on access to justice we find it remarkable that this proposal should be put forward before the results of their inquiries are even known.

We regard the FOI Act as a vital mechanism of accountability which has transformed the public’s rights to information and substantially improved the scrutiny of public authorities. We would deplore any attempt to weaken it.

Yours sincerely,

Act Now Training, Ibrahim Hasan, Director
Action on Smoking and Health, Deborah Arnott, Chief Executive
Against Violence and Abuse, Donna Covey, Director
Animal Aid, Andrew Tyler, Director
Archant, Jeff Henry, Chief Executive
ARTICLE 19, Thomas Hughes, Executive Director
Article 39, Carolyne Willow, Director
Belfast Telegraph, Gail Walker, Editor
Big Brother Watch, Emma Carr, Director
British Deaf Association, Dr Terry Riley, Chair
British Humanist Association, Andrew Copson, Chief Executive
British Muslims for Secular Democracy, Nasreen Rehman, Chair
BSkyB, John Ryley, Head of Sky News
Burma Campaign UK, Mark Farmaner, Director
Campaign Against Arms Trade, Ann Feltham, Parliamentary Co-ordinator
Campaign for Better Transport, Stephen Joseph, Chief Executive
Campaign for Freedom of Information, Maurice Frankel, Director
Campaign for National Parks, Ruth Bradshaw, Policy and Research Manager
Campaign for Press & Broadcasting Freedom, Ann Field, Chair
Centre for Public Scrutiny, Jacqui McKinlay, Executive Director
Chartered Institute of Library & Information Professionals, Nick Poole, Chief Executive
Children England, Kathy Evans, Chief Executive
Children’s Rights, Alliance for England, Louise King, Co-Director
CN Group Limited, Robin Burgess, Chief Executive
Community Reinvest, Dr Jo Ram, Co-Founder
Computer Weekly, Bryan Glick, Editor in Chief
CORE, Marilyn Croser, Director
Corporate Watch / Corruption Watch, Susan Hawley, Policy Director
Coventry Telegraph, Keith Perry, Editor
Cruelty Free International, Michelle Thew, Chief Executive Officer
CTC, the national cycling charity, Roger Geffen, Campaigns and Policy Director
Daily Mail, Paul Dacre, Editor; Jon Steafel, Deputy Editor; Peter Wright, Editor Emeritus; Charles Garside, Assistant Editor; Liz Harley, Head of Legal
Debt Resistance UK
Deighton Pierce Glynn, Sue Willman, Partner
Democratic Audit, Sean Kippin, Managing Editor
Disabled People Against Cuts, Linda Burnip, Co-Founder
Down’s Syndrome Association, Carol Boys, Chief Executive
Drone Wars UK, Chris Cole, Director
English PEN, Jo Glanville, Director; Maureen Freely, President
Equality and Diversity Forum, Ali Harris, Chief Executive
Evening Standard, Sarah Sands, Editor
Exaro, Mark Watts, Editor in Chief
Finance Uncovered, Nick Mathiason, Director
Friends of the Earth, Guy Shrubsole, Campaigner
Friends, Families and Travellers, Chris Whitwell, Director
Gender Identity Research and Education Society, Christl Hughes, Legal Consultant
Global Initiative to End All Corporal Punishment of Children, Peter Newell, Co-ordinator
Global Witness, Simon Taylor, Co-Founder and Director
Greenpeace, John Sauven, Executive Director
Guardian News and Media Limited, Gillian Phillips, Director of Editorial Legal Services
Hacked Off, Dr Evan Harris, Executive Director
i, Oliver Duff, Editor
Inclusion London, Tracey Lazard, Chief Executive Officer
independent.co.uk, Christian Broughton, Editor
Index on Censorship, Jodie Ginsberg, Chief Executive Officer
INQUEST, Deborah Coles, Co-Director
Involve, Simon Burall, Director
Johnston Press Editorial Board, Jeremy Clifford, Chairman
Jubilee Debt Campaign, Sarah­‐Jayne Clifton, Director
KM Group, Geraldine Allinson, Chairman
Labour Campaign for Human Rights, Andrew Noakes, Director
Law Centres Network, Julie Bishop, Director
Leigh Day, Russell Levy, Head of Clinical Negligence
Liberty, Bella Sankey, Policy Director
Liverpool Echo, Alastair Machray, Editor
London Mining Network, Richard Solly, Co-ordinator
Loughborough and Shepshed Echo, Andy Rush, Editor
LUSH, Mark Constantine, Managing Director
medConfidential, Phil Booth, Co-ordinator
Metro, Ted Young, Editor
Migrants’ Rights Network, Don Flynn, Director
Move Your Money UK, Fionn Travers-Smith, Campaign Manager
mySociety, Mark Cridge, Chief Executive
NAT (National AIDS Trust), Deborah Gold, Chief Executive
National Commission on Forced Marriage, Nasreen Rehman, Vice Chair
National Union of Journalists, Michelle Stanistreet, General Secretary
Newbury Weekly News, Andy Murrill, Group Editor
News Media Association, Santha Rasaiah, Legal, Policy and Regulatory Affairs Director
Newsquest, Toby Granville, Editorial Development Director; Peter John, Group Editor for Worcester/Stourbridge
Nursing Standard, Graham Scott, Editor
NWN Media, Barrie Phillips-Jones, Editorial Director
Odysseus Trust, Lord Lester of Herne Hill QC, Director
Open Data Manchester, Julian Tait, Co-Founder
Open Knowledge, Jonathan Gray, Director of Policy and Research
Open Rights Group, Jim Killock, Executive Director
OpenCorporates, Chris Taggart, Co-Founder and Chief Executive Officer
Oxford Mail and The Oxford Times, Simon O’Neill, Group Editor
People for the Ethical Treatment of Animals Foundation, Dr Julia Baines, Science Policy Advisor
Press Association, Pete Clifton, Editor in Chief; Jonathan Grun, Emeritus Editor
Press Gazette, Dominic Ponsford, Editor
Prisoners’ Advice Service, Lubia Begum-Rob, Joint Managing Solicitor
Privacy International, Gus Hosein, Executive Director
Private Eye, Ian Hislop, Editor
Public Concern at Work, Cathy James, Chief Executive
Public Interest Research Centre, Richard Hawkins, Director
Public Law Project, Jo Hickman, Director
Pulse, Nigel Praities, Editor
Race on the Agenda, Andy Gregg, Chief Executive
Renewable Energy Foundation, Dr John Constable, Director
Reprieve, Clare Algar, Executive Director
Republic, Graham Smith, Chief Executive Officer
Request Initiative CIC, Brendan Montague, Founder and Director
Rights Watch (UK), Yasmine Ahmed, Director
RoadPeace, Beccie D’Cunha, Chief Executive Officer
Salmon and Trout Conservation (UK), Guy Linley-Adams, Solicitor
Sheila McKechnie Foundation, Linda Butcher, Chief Executive
Society of Editors, Bob Satchwell, Executive Director
South Northants Action Group, Andrew Bodman, Secretary
South Wales Argus, Kevin Ward, Editor
Southern Daily Echo, Ian Murray, Editor in Chief
Southport Visitor, Andrew Brown, Editor
Spinwatch, David Miller, Director
Stop HS2, Joe Rukin, Campaign Manager
Sunday Life, Martin Breen, Editor
TaxPayers’ Alliance, Jonathan Isaby, Chief Executive
Telegraph Media Group, Chris Evans, Editor and Director of Content
The Corner House, Nick Hildyard, Founder and Director
The Independent, Amol Rajan, Editor
The Independent on Sunday, Lisa Markwell, Editor
The Irish News, Noel Doran, Editor
The Mail on Sunday, Geordie Greig, Editor
The Sun, Tony Gallagher, Editor; Stig Abell, Managing Editor
The Sunday Post, Donald Martin, Editor
The Sunday Times, Martin Ivens, Editor
The Times, John Witherow, Editor
Transform Justice, Penelope Gibbs, Director
Transparency International UK, Robert Barrington, Executive Director
Trinity Mirror, Simon Fox, Chief Executive; Lloyd Embley, Group Editor in Chief; Neil Benson, Editorial Director Regionals Division
Trust for London, Bharat Mehta, Chief Executive
UNISON, Dave Prentis, General Secretary
Unite the Union, Len McCluskey, General Secretary
Unlock Democracy, Alexandra Runswick, Director
War on Want, Vicki Hird, Director of Policy and Campaigns
We Own It, Cat Hobbs, Director
Welfare Weekly, Stephen Preece, Editor
WhatDoTheyKnow, Volunteer Administration Team
Women’s Resource Centre, Vivienne Hayes, Chief Executive Officer
WWF-UK, Debbie Tripley, Senior Legal Adviser
Zacchaeus 2000 Trust, Joanna Kennedy, Chief Executive
38 Degrees, Blanche Jones, Campaign Director
4in10 Campaign, Ade Sofola, Strategic Manager

1 www.gov.uk/government/speeches/freedom-of-information-new-commission

2 The Rt Hon Jack Straw MP, oral evidence before Justice Committee, Post-Legislative Scrutiny of the Freedom of Information Act, 17 April 2012, Q.344. www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/120417.htm

3 BBC Radio 4, Today programme, 14 May 2015. http://www.theguardian.com/uk-news/2015/may/14/court-exceeded-its-power-in-ordering-publication-of-charles-memos-straw. The Supreme Court’s ruling related to the use of the veto to block the release of Prince Charles’ correspondence with ministers in response to a request by the Guardian newspaper

4 Oral evidence to Justice Committee, 17 April 2012, Q.355 & Q.363. www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/120417.htm

5 House of Commons, oral questions, 23.6.15, col. 754, www.publications.parliament.uk/pa/cm201516/cmhansrd/cm150623/debtext/150623‐0001.htm#15062354000032

6 Ofcom, February 2012, Written evidence to the Justice Committee, Post-legislative Scrutiny of the Freedom of Information Act, Volume 3, Ev w176-177. http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/96vw77.htm

7 The Government response to consultationon enhanced fees for divorce proceedings, possession claims, and general applications in civil proceedings and Consultation on further fees proposals