The Freedom of Information (FoI) Act 2000 came into effect in 2005, giving the UK a broad right of access to information held by public authorities including government departments and local authorities. The Act obliges public authorities to offer requesters advice, however, according to McNae’s essential law for journalists, it is said to be ‘bedeviled’ by bureaucratic delay and wide-ranging exemptions.
Difficulties with FoI obligations
Although some public bodies are helpful when responding to FoI requests, many delay answering requests and are slow when considering the ‘public interest test’. Appeals can be made to the Information Commissioner and what is now called the First-tier Tribunal (Information Rights).
The Act is considered a worthwhile tool for investigative journalism and covers about 100,000 major and minor bodies in the public sector. Some of them are as follows:
- national government departments and ministries such as the Home Office, Foreign Office and Prime Minister’s Office;
- the House of Commons, the House of Lords, the national assemblies of Northern Ireland and Wales;
- the armed forces;
- local government – metropolitan, city, county, district, and parish councils, transport executives, waste disposal agencies, police forces, fire services;
- national park authorities;
- universities, colleges and schools in the state sector;
- the National Health Service, including primary care trusts, hospital trusts, health authorities, doctors’ and dentists’ practices;
- various advisory councils, and regulatory bodies with statutory powers such as Ofcom and the General Medical Council.
Institutions and agencies not covered by the Act
- the security and intelligence agencies – MI5, MI6 and GCHQ;
- courts and tribunals (but a request can be made to a government department such as the Ministry of Justice);
- charities; private prisons; harbor authorities; and MPs and peer, as individuals;
- the Royal Family
Although the Royal Family is exempt from the Act, an amendment introduced in section 46(1) and Schedule 7 of the Constitutional Reform and Governance Act 2010, which came into force in January 2011, gives the three senior royals – the Queen, the Prince of Wales and Prince William absolute exemption from any application for information. Other members, such as the Duke of Edinburgh and Prince Harry, remain subject to qualified exemption.
How the Act Works
A public authority should respond to a request for information within 20 working days, either supplying the information or explaining that it cannot do so because:
- it does not hold it – in most circumstances this must be made clear;
- it would exceed the cost limits for free provision;
- it is exempt from disclosure.
A government department is required to disclose requested information if it costs no more than £600. All other public authorities covered by the Act are to disclose information if it costs no more than £450. Cost is estimated by assessing the staff time reasonably needed to determine and retrieve the information – staff time is rated at £25 an hour.
The BBC, Channel 4 and S4C – public service broadcasters – were made subject to the Act, but in a limited way as disclosure provisions apply to information they hold ‘for purposes other than those of journalism, art or literature’. It does not require them to comply with:
(1) requests attempting to reveal journalists’ confidential sources;
(2) requests by rival news organisations, or by the subjects of journalistic investigations (that is, ‘data subjects’), aimed at securing, before or after broadcast, material gathered in a journalistic investigation, including any footage/audio not broadcast.
Ofcom is subject to the Act, but the Press Complaints Commission is not because it is not a public authority.
Publication of material disclosed under the FoI Act brings no special protection against an action for defamation, as the Act does not confer statutory qualified privilege. Such reports may be protected by other defences, such as justification. It is important to remember that material disclosed under the Act will still be protected by copyright, which must be respected. However, copyright does not protect facts (only the way in which they are recorded), therefore journalists may use information supplied under the FoI Act in their own stories. In addition, the fair dealing defence applies to citing some text verbatim.