Media Law

Freedom of Information

Week 6

The Freedom of Information Act 2000 came into action in 2005, which created a general right of access to information held by different braches of the government and other public authorities in the UK.

In the past, requests under the Act requiring a disclosure from the Government included (1) the advice given by the Attorney General on the legality of the UK's part in the invasion of Iraq and (2) a draft of the controversial dossier published by the Goverment justifying the invasion.

Although most of the stories that make it onto the national news channels are involving controversial or shocking disclosures provoking a reaction throughout the whole of the country, it is important to remember that local and regional journalists also regularly use this Act to retrieve disclosures. Examples of these have included;

• how many children have been excluded from local schools;
• the number of under-16s that have required local hospital treatment for alcohol-related illness and drug issues.

BBC journalists have have managed to receive disclosures concerning;

• elderly residents of a nursing home who allegedly suffered verbal and physical abuse;
• the fact that only two councils had managed to meet Government targets on the welfare of children in council care.

Heather Brooke, the author of her book Your Right To Know, has summed up the Act in a nutshell by saying: 'While not quite the sword of truth some had hoped, the new laws are an effective chisel against government secrecy and corruption.'

The Act covers about 100,000 bodies in the public sector, which includes to name a few:

• the armed forces;
• national park authorities
• universities, schools and colleges - if in the state sector;
• national government departments and ministries.

There are various public bodies that are exempt from the Act. These include:

• The UK's security and intelligence services - MI5, MI6, and GCHQ.
• Courts and Tribunals.

A public authority who receives a request for information must normally make a response within 20 working days, either giving the information or with an explanation as to why it cannot be supplied. This may be because:

• the cost of retrieving the information is to expensive;
• the public authority does not hold the information;
• the information is covered by exemptions under the Act, and therefore does not have to be supplied.

The Act permits authorities to refuse to supply information in certain circumstances, known as exemptions. There are two types of exemptions; absolute and qualified.

The absolute exemptions are contained in:

• Section 21 - information reasonably accessible by other means.
• Section 23 - information supplied to the public authority by or relating to bodies dealing with security matters.
• Section 32 - court records.
• Section 40 - personal information.
• Section 41 - information provided to the authority in confidence by another party.

By qualified exemptions, the Act means those that if the public authority decides not to supply the information in these categories it must gives reasons, showing how it has applied the 'public interest test', laid down in the Act, in order to justify its refusal to provide the information.
The Information Commissioner lists some of the public interest factors that are likely to encourage the public authority to disclose information:

• Promoting accountability and transparency in the spending of public money.
• Bringing to light information affectingpublic health and safety.
• Furthering the understanding and participation in the public debate of issues of the day.

The qualified exemptions are:

• Section 24 -information which if disclosed is likely to prejudice national security.
• Section 27 - information which if disclosed is likely to prejudice international relations.
• Section 31 - information held by an authority for law enforcement functions.
• Section 35 - information which relates to formulation or development of Governement policy.
• Section 36 - information the disclosure of which is likely to prejudice effective conduct of public affairs. Heather Brooke states: 'This is the weakest exemption, frequently overturned on appeal. A public authority's reliance on it shows it is desperate and grasping at straws.'
• Section 43 - commercial interests.

John Connor Press Associates [a freelance news agency] v Information Commissioner

In this case, the Information Tribunal decided that the National Maritime Museum should in fact of disclosed information regarding its finances concerning its purchase of a particular set of artworks. The Museum had argued that when it received the FOI request, it was in discussion with another artist about a different project and their ability to ensure value for public money would of been prejudicedh had information regarding this of been released. The tribunal decided however that no real and significant risk of such a prejudice existed.

Derry City Council v Information Commissioner

This case involved a request by an employee of the Belfast Telegraph for details of an agreement between Ryanair and the council regarding the operation of the Derry City Airport, including how much Ryanair had paid for the airport facility. As a result of an appeal to the Information Commissioner, the council provided the information by way of a document, although some information was missing. The Commissioner upheld a complaint about the information that was not included.

Recent news stories

Tuesday 26th October 2010

The Ministry of Defence has released details of incidents in which troops attacked Afghan civilians, leading the actions of three British military units in Afghanistan to be questioned.
The Guardian made a request under the Freedom of Information Act 2000, which disclosed that of casualities caused by Brtish troops, two thirds of those involoved troops from these three units, causing concern. These were among thousands of incidents that were spoke about in US army logs posted by Wikileaks, the popular whistle-blowing website.

Sunday 17th October 2010

A FOI request resulted in the British Governor of a Caribbean island to question the ownership of a suggested deal between a company allegedly owned by Conservative MP, Lord Ashcroft and a prime minister. Both are now being investigated over alleged corruption, Foreign Office documents suggest.

Monday 11th October 2010

It been has reported that local councils are using the FOI act as a means of avoiding answering questions. Judith Townend reported that when a news blogger questioned a local council of the Isle of Wight about a broken lift, they were told to try and get the answers to this by putting in a FOI request.
Trinity Mirror's multimedia chief, David Higgerson says he sees one or two example of this a week and beleives this 'can kick a tricky issue into the long grass for 20 days (or longer), by which the public body involved will hope the media agenda has simply moved on.'

Recent legal developments

The Conservative- Lib dem coalition governement intend to extend the powers of the FOI act, in order to increase transparency.
One of the central issues that have been scrutinised recently is the issue of 'aggregating public interest considerations'. In cases and particularly so, where the question of exercising the public interest test is needed, the question arises as to whether;

1. It is available to the public authority to aggregate all the public interest considerations which come up in under the different exemptions in a single public interest balancing exercise; or
2. the authority must undergo discrete public interest balancing tests under each individual exemption.