Laws restricting disclosure of information

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Introduction

Many laws include clauses and sections that prevent disclosure of information, some even making it a criminal offence. When such a restriction exists, The FOI Act's Section 44 comes into play, and is used as an absolute exemption which means that no information can be released, even when there may be an overriding public interest.

Collectively, these restrictions mean that some information on, for example, tax affairs, local government maladministration complaints (CLAE/LGO), civil aviation, animal experimentation, investigations or regulatory dealings with communications companies or financial firms, investigations into rogue companies, etc etc, will never be released.

The new coalition government has continued with these restrictions, despite their outward support for increased transparency and reform of the Freedom of Information Act. On 2nd June, the Secretary of State for Transport Rail laid before Parliament the Statutory Instrument Rail Passengers’ Rights and Obligations Regulations 2010 (SI 2010/1504({{#formlink:form=Legislation|link text=add|query string=Legislation[Type]=uksi&Legislation[Year]=2010&Legislation[Number]=1504}})), it comes into force on 25 June. This Regulation implements EU legislation (Regulation (EC) No. 1371/2007[1]) on rail passengers’ rights and obligations, including the handling of complaints, special rights for disabled passengers and of fatal accidents.

Regulation 19 protects release of information relating to complaints & enforcement measures obtained by the Office of Rail Regulation, the Rail Passengers’ Council or the London Travel Users’ Committee from railway companies or individuals relating to breaches of rail passengers’ rights and obligations without prior approval from the companies in question. There is a maximum £5,000 fine and/or 2 year prison term if you breach this. The restriction lasts during the lifetime of the individual or the continuation of the railway company.

Although in the grand scheme of things, this is a small restriction, it does mean that even if there is information within this topic that is in the public interest to be released, it cannot be disclosed by the ORR or the Rail Complaints bodies via the Freedom of Information Act due to Section 44. It's worth noting that there is no clause in the underlying European legislation that this Regulation introduces which restricts information publication. Further information on the background to this Regulation can be found on the DfT website.

Suggestions for improving s44

  • Amend this exemption by requiring the public authority carry out a public interest test, taking into account the spirit and rationale of the reasons for non-disclosure in the original acts.
  • The Government should use their FOIA s75 powers to gradually repeal unnecessary restrictions on information publication.
  • Change the legislation "Regulatory Impact Assessment" process to include the impact of any new law on Freedom of Information. The assessment should robustly justify any restrictions,
  • Amend the terms of reference for the various parliamentary committees on scrutiny of SIs [2][3] so that they also examine any FOI restrictions.

List of laws

2010

  • Energy Act 2010 Schedule 1, paragraph 16 amends the Utilities Act 2000 to restrict publication of information sent to government by energy suppliers relating to schemes helping disadvantaged groups of customers or Fuel Poverty schemes.
16. In section 105 (general restrictions on disclosure of information)—
(a) in subsection (1), after “2004” insert “or Part 2 or section 27 or 28 of the Energy Act 2010”;
(b) in subsection (3)(a), after “2008” insert “, Part 2 or section 28 of the Energy Act 2010”.
  • Communications Act 2003 (Disclosure of Information) Order 2010 SI 2010/282
  • Cross-Border Payments in Euro Regulations 2010 SI 2010/89
  • Human Fertilisation and Embryology Act 2008 (Commencement No.3) Order 2010 SI 2010/987
  • Passengers’ Council (Non-Railway Functions) Order 2010 SI 2010/439({{#formlink:form=Legislation|link text=add|query string=Legislation[Type]=uksi&Legislation[Year]=2010&Legislation[Number]=439}})
  • Rail Passengers’ Rights and Obligations Regulations 2010 SI 2010/1504({{#formlink:form=Legislation|link text=add|query string=Legislation[Type]=uksi&Legislation[Year]=2010&Legislation[Number]=1504}})
  • Rail Vehicle Accessibility (Non-Interoperable Rail System) Regulations 2010 SI 2010/432
  • Train Driving Licences and Certificates Regulations 2010 SI 2010/724
  • Train Driving Licences and Certificates Regulations (Northern Ireland) 2010 - No.132 S.R. (N.I.)
  • Transfer of Tribunal Functions Order 2010 SI 2010/22

2009 and before

  • To be added soon
  • Searching www.statutelaw.gov.uk for "Restrictions on disclosure of information" lists many (but not all) of the laws in question.

List of laws that have had restrictions removed or relaxed

  • The FOI Act Section 75 allows the Secretary of State to relax or remove these laws that have a s44 prohibition via a Statutory Instrument. There has been one such SI to-date (SI 2004/3363).
  • The wording used in most cases was as follows:
"(a) the person making the disclosure referred to in that section is, or is acting on behalf of a person who is, a public authority for the purposes of the Freedom of Information Act 2000, and
(b) the information is not held by the authority on behalf of another person."
  • Access to Justice Act 1999, section 20 (but only after 100 years!)
  • Audit Commission Act 1998, section 49 (in part)
  • Biological Standards Act 1975, section 5 (fully repealed)
  • Factories Act 1961, section 154
  • Health and Safety At Work Act 1974, section 28 (in part)
  • Medicines Act 1968, section 118
  • National Health Service Act 1977, schedule 11, paragraph 5
  • Offices, Shops and Railway Premises Act 1963, section 59
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