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United Kingdom

Revising Freedom of Information Act Code of Practice (UK0070)

Overview

At-a-Glance

Action Plan: United Kingdom – Third National Action Plan 2016-18

Action Plan Cycle: 2016

Status: Inactive

Institutions

Lead Institution: Cabinet Office

Support Institution(s): All government departments; 360Giving, ARTICLE 19, Campaign for Freedom of Information, mySociety, The Open Data Institute, Transparency International UK

Policy Areas

Open Contracting and Procurement, Open Data, Right to Information

IRM Review

IRM Report: United Kingdom End-of-Term Report 2016-2018, United Kingdom Mid-Term Report 2016-2018

Starred: No

Early Results: Marginal

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information Civic Participation

Potential Impact:

Implementation i

Completion:

Description

Objective: To enhance proactive transparency by making more information available in a more consistent way across the public sector; and to promote the effective operation of the FOI Act in the public interest by updating and expanding the Code of Practice.

Status quo: Public authorities are already required to publish a wide range of information proactively. The Independent Commission on Freedom of Information (the Commission) recognised that advances have been made, with specific reference to senior pay and benefits. The Commission also commented on the publication of FOI performance statistics by a range of public authorities, including central government. However, the Commission highlighted a lack of consistency. It noted a lack of reliable FOI performance data across the public sector as a whole. It also noted that while senior pay is published, details of expenses and benefits in kind are frequently not made available proactively. Further action is required to ensure enhanced and consistent standards of openness in these areas. The Commission also highlighted the need to review and update the Code of Practice issued under section 45 of the FOI Act. This allows the government to set out the practice that it considers desirable for public authorities to follow in meeting their FOI obligations. The Code of Practice was issued over a decade ago in November 2004, shortly before the FOI Act was introduced, and has not been updated since to reflect developments in best practice and case law.
The recent report by the Commission recommended that:
“The government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate.
“The government should also review and update the Code to take account of the ten years of operation of the Act’s information access scheme.”

Ambition: We are committed to making government more transparent, so taxpayers can hold it to account both on how money is being spent and how decisions are made. This commitment will implement proposals in the Commission’s report. It will improve and increase the range of information available to the public without having to make requests for it and will improve the operation of the Act. Further steps will be taken to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector. The public should not have to resort to making FOI requests to obtain it. We intend to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by summer 2016. We will also issue guidance in the revised Section 45 Code of Practice to set a standard that public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance, to better hold public authorities to account.

A revised Code of Practice will ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. Public authorities should have sufficient guidance to properly manage information access requests in order to protect the right of access to information the FOI Act provides. We aim to consult on and issue a new Code of Practice by the end of 2016.

IRM End of Term Status Summary

8. Enhanced transparency requirements and revised Freedom of Information Act Code of Practice

Commitment Text: To increase transparency and improve the operation of the Freedom of Information (FOI) Act in the public interest.

Objective:To enhance proactive transparency by making more information available in a more consistent way across the public sector; and to promote the effective operation of the FOI Act in the public interest by updating and expanding the Code of Practice.

Status quo:Public authorities are already required to publish a wide range of information proactively. The Independent Commission on Freedom of Information (the Commission) recognised that advances have been made, with specific reference to senior pay and benefits.

The Commission also commented on the publication of FOI performance statistics by a range of public authorities, including central government. However, the Commission highlighted a lack of consistency. It noted a lack of reliable FOI performance data across the public sector as a whole.

It also noted that while senior pay is published, details of expenses and benefits in kind are frequently not made available proactively. Further action is required to ensure enhanced and consistent standards of openness in these areas.

The Commission also highlighted the need to review and update the Code of Practice issued under section 45 of the FOI Act. This allows the government to set out the practice that it considers desirable for public authorities to follow in meeting their FOI obligations. The Code of Practice was issued over a decade ago in November 2004, shortly before the FOI Act was introduced, and has not been updated since to reflect developments in best practice and case law.

The recent report by the Commission recommended that:

“The government reviews section 45 of the Act to ensure that the range of issues on which guidance can be offered to public authorities under the Code is adequate.

“The government should also review and update the Code to take account of the ten years of operation of the Act's information access scheme.”

Ambition:We are committed to making government more transparent, so taxpayers can hold it to account both on how money is being spent and how decisions are made. This commitment will implement proposals in the Commission's report. It will improve and increase the range of information available to the public without having to make requests for it and will improve the operation of the Act.

Further steps will be taken to ensure transparency on issues such as FOI performance and senior pay and benefits across the whole public sector. The public should not have to resort to making FOI requests to obtain it. We intend to issue guidance to public authorities to set a higher standard for the publication of senior level pay and benefits by summer 2016. We will also issue guidance in the revised Section 45 Code of Practice to set a standard that, public authorities with 100 full time equivalent employees or more should publish statistics on their FOI performance, to better hold public authorities to account.

A revised Code of Practice will ensure the range of issues on which guidance can be offered to public authorities is sufficient and up to date. Public authorities should have sufficient guidance to properly manage information access requests in order to protect the right of access to information the FOI Act provides. We aim to consult on and issue a new Code of Practice by the end of 2016.

Milestones

1. Enhanced transparency measures, including statistics on the operation of the FOI Act and data about senior pay and benefits (July 2016- December 2016)

2. Consult on and issue new FOI Code of Practice (July 2016- December 2016)

Responsible institution: Cabinet Office

Supporting institutions: 360Giving, ARTICLE 19, Campaign for Freedom of Information, mySociety, The Open Data Institute, Transparency International UK

Start date: July 2016

End date: December 2016

Commitment Aim:

The commitment concerned the updating of the UK's Freedom of Information (FOI) Act 2000, especially the section 45 code of practice that sets guidance on the law which has not been updated since the Act came into force in 2005.[Note 72: Department for Constitutional Affairs, Guidance: Code of practice on the discharge of public authorities functions under part 1 of the Freedom of Information Act 2000, https://www.gov.uk/government/publications/code-of-practice-on-the-discharge-of-public-authorities-functions-under-part-1-of-the-freedom-of-information-act-2000 ] The commitment was rooted in a Supreme Court judgement from March 2015 on the government's veto power, and a subsequent review of the FOI law by the independent Burn's Commission in 2015-2016.

The government also agreed to a series of other recommendations, including greater proactive publication of salaries; and publication of more statistics on FOI performance for bodies with more than 100 employees.[Note 73: Independent Commission on Freedom of Information Report, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504139/Independent_Freedom_of_Information_Commission_Report.pdf, and Cabinet Office, ‘Written statement to Parliament: Open and transparent government', https://www.gov.uk/government/speeches/open-and-transparent-government ]

The guidance would make for more consistent statistics on FOI across the UK (rather than the limited monitored bodies that publish statistics at present). It would also limit the time allowed for extensions of the 20-day FOI period and bring about more proactive publication of salary details for senior board level and equivalents - though what this means may vary. The S.14 explanation would make clear when the ‘vexatious' requests section can and should be used, for requests that have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress. The government argues that this fits with a more proactive publication of data.[Note 74: Interview with Rachel Anderson, Head of FOI, Cabinet Office, 13 September 2017. ]

Status

Midterm: Limited

The Code was published but was 16 months behind schedule. According to the government, although there were no particular obstacles, it took time to get the different parts of the code right, especially as the government wanted to create a comprehensive document.[Note 75: Rachel Anderson, Head of FOI, Cabinet Office, 13 September 2017.] CSOs felt that the delay on FOI showed the law was not a priority. Some of the recommendations were downgraded from what the inquiry called for, as some of the original ones required primary legislation (notably the amended section 77 that covers what happens if a public authority attempts to destroy documents). Other recommendations were not included, such as the online publication of details of past requests, answers by any public body with more than 100 people or limiting the time available for internal reviews of requests to 20 days.[Note 76: Email exchange with Maurice Frankel, Director of the Campaign for Freedom of Information; Interview with Maurice Frankel, Director of the Campaign for Freedom of Information, 26 September 2017. ]

End of term: Complete

The government issued the consultation and draft ideas for the paper by the end of the action plan cycle, albeit more than a year behind schedule. An updated and expanded Code was then issued slightly outside of the cycle in July 2018.[Note 77: Code issued in July 2018 (is this outside commitment?) Cabinet Office (2018), Freedom of Information Code of Practice, https://www.gov.uk/government/publications/freedom-of-information-code-of-practice ] While not all departments had yet published the pay and benefits data outlined in the action plan, several government bodies were in the process of doing so and many intend to publish their data in the coming months.[Note 78: IRM researcher correspondence with FOI experts Paul Gibbons and Lynn Wyeth, February 2019.] The Campaign for Freedom of Information (CFOI) argued that the earlier draft code was “weaker in key respects than the 2004 version of the code it is intended to replace” and that “the new code should be substantially improved before it is introduced.”[Note 79: CFOI (2018), Revised Freedom of Information Code of Practice,

5 February 2018, https://www.cfoi.org.uk/latest-news/page/2/ ] At least one of CFOI's concerns, about advice in vexatious and costly cases, appeared to have been improved. However, there were continued concerns from CFOI regarding how certain parts of the old code were missing, including sections of the code that had played an important part in more than 120 appeal rulings.[Note 80: See comments by CFOI on the draft 4th action plan]

Did It Open Government?

Access to Information: Marginal

Civic Participation: Did not change

The commitment aimed to open government by publishing statistics about FOI itself and make the request process clearer, thus generating new information.

The new Code, as promised under the commitment, clarified and updated areas around access, cost limits and vexatious requests, as well as guidance on contractual data. Two important additions were included: One concerned publication of pay and hospitality data for senior management in public institutions (defined as ‘staff at Director level and above'), and another mandated that all bodies with more than ‘100 Full Time Equivalent (FTE) employees...should, as a matter of best practice, publish details of their performance on handling requests for information under the Act'. This builds a far greater picture of FOI performance, given that at present only selected central government and monitored bodies collate data. The commitment had a marginal impact on access to information. As of the time of writing, only a few local authorities had published data on FOI requests, though experts believed that the timing of the publication of the code meant most bodies would begin to publish the data in April or May 2019.[Note 81: Correspondence with FOI experts Paul Gibbons and Lynn Wyeth, February 2019. One council, Leicester City Council, is already publishing it, http://data.leicester.gov.uk/explore/dataset/freedom-of-information-foi-code/table/?sort-period%5D

The government did not promote any greater public involvement during the implementation of this commitment.

Carried Forward?

This commitment will continue outside of the action plan into 2019 and beyond. The IRM's midterm report recommended that the Code be implemented as soon as possible, along with Lord Burn's original recommendations.


United Kingdom's Commitments

  1. Grants Data

    UK0090, 2019, E-Government

  2. Public Participation

    UK0091, 2019, E-Government

  3. Open Policy Making

    UK0092, 2019, Public Participation

  4. Open Contracting Data

    UK0093, 2019, E-Government

  5. Natural Resource Transparency

    UK0094, 2019, E-Government

  6. Innovation in Democracy Programme

    UK0095, 2019, Public Participation

  7. Sustainable Open Government

    UK0096, 2019, Capacity Building

  8. Local Transparency

    UK0097, 2019, E-Government

  9. Beneficial Ownership – UK

    UK0063, 2016, Beneficial Ownership

  10. Natural Resource Transparency

    UK0064, 2016, Extractive Industries

  11. Anti-Corruption Strategy

    UK0065, 2016, Anti-Corruption Institutions

  12. Anti-Corruption Innovation Hub

    UK0066, 2016, Anti-Corruption Institutions

  13. Open Contracting

    UK0067, 2016, E-Government

  14. Grants Data

    UK0068, 2016, E-Government

  15. Elections Data

    UK0069, 2016, Capacity Building

  16. Revising Freedom of Information Act Code of Practice

    UK0070, 2016, Open Contracting and Procurement

  17. Identifying and Publishing Core Data Assets

    UK0071, 2016, Legislation & Regulation

  18. Involving Data Users in Shaping the Future of Open Data

    UK0072, 2016, Capacity Building

  19. Better Use of Data Assets

    UK0073, 2016, Capacity Building

  20. GOV.UK

    UK0074, 2016, Open Data

  21. Ongoing Collaborative Approach to Open Government Reform

    UK0075, 2016, E-Government

  22. Open Government at All Levels

    UK0076, 2016, OGP

  23. Open Policy-Making and Public Engagement

    UK0077, 2016, Capacity Building

  24. Public Sector Innovation

    UK0078, 2016, Capacity Building

  25. OCDS Implementation

    UK0079, 2016, E-Government

  26. Open-Up Government

    UK0080, 2016, Capacity Building

  27. Open Data Plan

    UK0081, 2016, E-Government

  28. Open Data Service

    UK0082, 2016, Capacity Building

  29. Statswales

    UK0083, 2016, E-Government

  30. Data Research Centre Wales

    UK0084, 2016, E-Government

  31. Government Social Research Publication Protocol

    UK0085, 2016, E-Government

  32. Gov.Wales

    UK0086, 2016, E-Government

  33. Code of Practice in Supply Chains

    UK0087, 2016, Labor

  34. Starred commitment National Indicators for Wales

    UK0088, 2016, Fiscal Transparency

  35. Starred commitment Well-Being Duty

    UK0089, 2016, E-Government

  36. National Information Infrastructure

    UK0042, 2013, Records Management

  37. NHS England Website and Network

    UK0043, 2013, Health

  38. Revised Local Authories Data Transparency Code

    UK0044, 2013, Capacity Building

  39. Transparent Social Investment Market

    UK0045, 2013, Open Data

  40. Manage and Capture Digital Records

    UK0046, 2013, Capacity Building

  41. Starred commitment Cross-Government Anti-Corruption Plan

    UK0047, 2013, Anti-Corruption Institutions

  42. Starred commitment Company Beneficial Ownership Information

    UK0048, 2013, Beneficial Ownership

  43. Access to Police Records

    UK0049, 2013, Justice

  44. Transparency in Construction

    UK0050, 2013, Infrastructure & Transport

  45. Legislative Openness

    UK0051, 2013, Beneficial Ownership

  46. Whistleblowing

    UK0052, 2013, Legislation & Regulation

  47. Open Contracting

    UK0053, 2013, Open Contracting and Procurement

  48. Open Contracting Scotland

    UK0054, 2013, E-Government

  49. Starred commitment International Aid Transparency

    UK0055, 2013, Aid

  50. Health Care Data

    UK0056, 2013, Health

  51. Open Policy Making

    UK0057, 2013, E-Government

  52. Sciencewise

    UK0058, 2013, E-Government

  53. Publication of Draft Legislation

    UK0059, 2013, Legislature

  54. Opendatacommunities Programme

    UK0060, 2013, E-Government

  55. PSI Re-Use Directive

    UK0061, 2013, Legislation & Regulation

  56. Starred commitment Extractive Transparency

    UK0062, 2013, E-Government

  57. Ensuring a Clear Process to Support Reduction in Collection of ‘Unnecessary Data’

    UK0024, 2011, E-Government

  58. Developing Data.Gov.Uk and Identifying Other Digital Channels to Support Users

    UK0025, 2011,

  59. Evidence and Databases Behind Policy Statements

    UK0026, 2011, E-Government

  60. Data Underlying Surveys

    UK0027, 2011, E-Government

  61. Examining Ways for Improving the Use of Existing Published Data

    UK0028, 2011, E-Government

  62. Stimulate the Market for Innovative Use of Open Data

    UK0029, 2011, Open Data

  63. Spend up to 5% of Budget Support on Accountability

    UK0030, 2011, E-Government

  64. Include the OGP Eligibility Criteria to Determine Readiness for UK Budget Support

    UK0031, 2011, Aid

  65. Publish Aid Information from All ODA Government Departments

    UK0032, 2011, Aid

  66. Use a Single Domain for Government Services

    UK0033, 2011, E-Government

  67. Mandate ‘Channel Shift’

    UK0034, 2011, E-Government

  68. Go Online for All Consultations

    UK0035, 2011, E-Government

  69. Develop Practical Guidelines on Departmental Access to Internet and Social Media

    UK0036, 2011, Civic Space

  70. Open Data and Application Interfaces in Ways That Encourage Businesses

    UK0037, 2011, E-Government

  71. Create Cross-Government Standards on APIs

    UK0038, 2011,

  72. Establish Standardised Formats for User-Satisfaction Data

    UK0039, 2011, Records Management

  73. Provide Government Documents in Open Standard Format

    UK0040, 2011, E-Government

  74. Implement Crowd-Sourcing and Engagement Processes

    UK0041, 2011,

  75. New Power to Secure Release of Valuable Datasets

    UK0001, 2011,

  76. New, Higher Cost Cap for FOI

    UK0002, 2011, Right to Information

  77. Meaningful Disincentives

    UK0003, 2011,

  78. Maximum Time Limits

    UK0004, 2011, Right to Information

  79. Altered Procurement Rules

    UK0005, 2011,

  80. Mandating Phased Introduction of ‘Public by Default’

    UK0006, 2011, E-Government

  81. Formalising Public Data Principles

    UK0007, 2011, Records Management

  82. Having in Place an Open Data Compliance Monitoring Process

    UK0008, 2011, Records Management

  83. Making Clear the Minimum Citizens Can Expect on Publication and Quality of Data

    UK0009, 2011,

  84. Ensuring a Line of Continuous Improvement for Public Service Providers

    UK0010, 2011, Open Data

  85. Encourage Continuous Improvement

    UK0011, 2011, Records Management

  86. Setting Out How Citizens Can Challenge Where There Is Failure in the Process

    UK0012, 2011, Public Participation

  87. Establishing an Obligation to Consider and Act on User Feedback

    UK0013, 2011, Public Participation

  88. Making Clear That Licenses Must Cover Free, Commercial Re-Use

    UK0014, 2011,

  89. Merge Information Asset Registers…Into a Single Data Inventory

    UK0015, 2011,

  90. Set Consistent Expectations of the Appropriate Quality of Meta-Data

    UK0016, 2011, Records Management

  91. For Data Co-Ordinated Across Government, Set Definitions

    UK0017, 2011, E-Government

  92. Introducing Corporate Responsibility at Transparency Board Level

    UK0018, 2011, Records Management

  93. Strengthening and Broadening the Public Sector Transparency Board

    UK0019, 2011, Anti-Corruption Institutions

  94. Bringing the Sector Transparency Board Model to Other Parts of Public Sector

    UK0020, 2011, Anti-Corruption Institutions

  95. Reviewing the Existing Governance and Regulatory Model

    UK0021, 2011, Records Management

  96. Establishing a Framework for Public Service Providers Data Inventories

    UK0022, 2011, Records Management

  97. Developing a Clear Methodology to Support Intelligent Inventories

    UK0023, 2011, Records Management