Public Law

The UK Ministry of Justice has produced a response to the House of Commons Justice Committee’s Report, ‘Post-legislative scrutiny of the Freedom of Information Act 2000’, accepting some of the report’s recommendations but rejecting others (as tends to be the way of these things).

Of the rejected recommendations, it is perhaps most interesting from a Scottish perspective to note that the MoJ did not agree with the Committee’s view that FOIA should include a 20 working day deadline for internal reviews (something the UK Information Commissioner’s Office (“ICO”) has called for).

The contrast with the Freedom of Information (Scotland) Act 2002 is striking, as FOISA does include a time limit of 20 working days from receipt of the request for review. In FOIA, the only requirement in relation to internal reviews is for a “prompt determination”. This is set out in the Code of Practice rather than in FOIA itself, though the ICO has issued guidance saying that reviews should normally be conducted within 20 working days and should certainly take no longer than 40 working days.

The Committee had accepted that in the main the 20 day response time has been met, but there was concern that some public authorities were “kicking requests into the long grass by holding interminable internal reviews” – i.e. using the lack of a hard time limit to delay responding to requests (which in turn delays an applicant’s ability to appeal to the ICO). The MoJ rejected the addition of a time limit, stating that “establishing best practice for internal reviews through Code of Practice, rather than statute, and allowing some discretion over the timeframe for response, is an appropriate means of establishing a clear expectation of timelines.”

The ICO’s Deputy Commissioner and Director of Freedom of Information, Graham Smith, last week expressed his regret that the MoJ did not accept the Committee’s recommendation, and many other commenters with experience of reviews under both FOIA and FOISA have argued that Scotland’s statutory certainty is much preferable. Whether Scottish public authorities take the same view would be interesting to know.