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MP urges Parliament to reform FOI laws

Block ministerial veto too

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Ministers should not be able to block freedom of information (FOI) requests, according to amendments to FOI legislation proposed by a Liberal Democrat MP. A Labour former minister has said that the law should extend to media companies.

Tom Brake has introduced a Freedom of Information (Amendment) Bill in the House of Commons, hoping to stop politicians from blocking FOI requests. His Bill also proposes reducing the time that organisations can take in answering FOI queries.

"The four key areas that I seek to address are the removal of the ministerial veto; an extension of the time limit within which proceedings can be brought for the offence of deliberately altering a record to prevent the disclosure of information; a limit on the time allowed for public authorities to respond to requests involving consideration of the public interest; and an extension of the range of bodies covered by FOI legislation," he said in the House of Commons.

"The exercise of the ministerial veto introduces a veil of secrecy and affords an opportunity for arguments in favour of the public interest to be dismissed out of hand," he said. "Furthermore, its deployment sets a dangerous precedent and paints a worrying picture of a disdainful relationship between Government and the electorate."

Under current laws action can only be taken against an organisation for deleting information that should have been revealed within a certain time frame. In the aftermath of a controversy over a university's climate science research, Brake said that that time limit must be extended.

"In its subsequent report, the Select Committee on Science and Technology recommended that the six-month time limit between offence and prosecution for breaches of [this section of] the Freedom of Information Act be reviewed," he told the House of Commons. "The amendment proposed by my Bill would allow a prosecution to be brought within six months of sufficient evidence of the offence coming to the prosecutor's knowledge, rather than within six months of the offence being committed. However, a prosecution could not be brought more than three years after an offence had been committed."

Brake also said that FOI laws should be extended to cover more organisations.

"The Bill proposes an extension to the definition of public authorities to include publicly owned companies, publicly funded 'not for dividend' companies, and private contractors delivering high-value public sector contracts," he said. "At present, a company that is wholly owned by a public authority is subject to the FOI Act in its own right under section 6(1) of the Act. However, where a company is jointly owned by two or more public authorities, it is not subject to the Act. Equally, where a public authority owns 99% of the shares and someone else owns only 1%, the company is not covered.

"The proposed amendment would bring within the scope of the Act any company where at least 51% of the shares were owned by one or more public authorities. Not-for-dividend companies such as Network Rail, which are not covered by FOI although the Government are the sole shareholder, would have their secrets revealed if the Bill were to become law," he said.

Brake said that though the government can order private contractors doing major work for the government to be subject to FOI laws, it has never done so. The Act should be changed to include such companies, he said.

The Scottish government is currently consulting on plans to extend the FOI (Scotland) Act to include private bodies which carry out public functions.

Labour former minister Denis McShane, a former journalist and head of the National Union of Journalists, said in Parliament that media companies, amongst others, should be subject to FOI laws.

"I would like to see the Freedom of Information Act extended to all those organisations and companies that have any formal status within the public realm" he said. "We have referred to the fourth estate, and it is time for freedom of information laws to extend fully to all our media organisations.

"They have far more power than many public agencies, local councils and the rest, which are covered by FOI legislation. What our media organisations and the oligarchs – often from overseas – who own them decide to do has a huge impact on our public life, and any company that is in receipt of taxpayers' money should also be covered by FOI," he said.

McShane also said that though he had supported FOI legislation since the 1970s, he had seen it have a damaging effect on the processes of government.

"In large areas of government, the written discussion and advice that are now on offer to the Ministers who have to make decisions are weaker, because the deciders – the policy makers – are looking over their shoulders and saying, 'Will one tiny section of what I am writing appear on the front page of the Daily Mail, The Sun, The Daily Telegraph or any other paper?' As a result, they hedge their bets," he said.

"I started to see that happening during my time as a Minister in the Foreign Office, when it was a privilege to receive, frankly, some of the most brutal assessments of what was happening in the world from very, very able foreign service officers," said McShane. "As the dawn of freedom of information approached, however, those assessments became softer and more careful, because, although there are provisions for not revealing policy and the rest of it, they were not sure whether some of what they might write might, in some other context, be made available for the delectation of our journalists."

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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