Laws restricting disclosure of information

Introduction

Section 44 of the Freedom of Information Act exempts information from disclosure if releasing it would be illegal under other legislation. This meant that when the act came into force it didn't automatically repeal the raft of laws which prohibit public bodies from releasing certain types of information. Section 44 is an absolute exemption which means the information remains exempt from disclosure, even when there is an overriding public interest in making it available.

That this exemption is being used by public bodies to refuse to release information in response to FOI requests is revealed in the log of appeal determinations made by the Information Commissioner. These ICO decision notices also identify some of the specific laws which are overriding and restricting the scope of the Freedom of Information Act.

When the FOI act was passed by Parliament power was given to ministers to repeal laws preventing the operation of the FOI act without further reference to Parliament. The apparent intent was that over time there would be fewer and fewer areas where FOI can't reach. It has therefore come as a surprise to see that the new coalition government, which has generally taken a strongly pro-transparency stance, has started not by expanding the scope of FOI but by adding a new area which is to be outside its reach.

On the 2nd of June 2010, the Secretary of State for Transport and Rail laid before Parliament the Statutory Instrument Rail Passengers’ Rights and Obligations Regulations 2010. Regulation 19 prevents the release of information relating to complaints and enforcement measures obtained from rail companies by the Office of Rail Regulation and other rail complaints bodies unless permission to release the information is obtained from the rail companies. There is even a hefty maximum £5,000 fine and/or 2 year prison term if for those breaching this regulation. In the grand scheme of things, this is a small additional restriction on the operation of FOI, but we think it is worth drawing attention to as it is a worrying step in the wrong direction.

It's worth noting that there is no clause in the underlying European legislation which has prompted this regulation restricting information publication; the restrictions have been added during "gold plating" of the EU directive by the UK Government.

Collectively the S.44 exemption in the FOI act means that some information in areas such as tax affairs, local government maladministration complaints, civil aviation, animal experimentation, investigations or regulatory dealings with communications companies or financial firms, investigations into rogue companies, police complaints and many other subjects cannot be obtained via FOI requests.

Suggestions for improving the law with respect to the S.44 exemption

• Amend this exemption by requiring the public authority carry out a public interest test when invoking it. The public interest test could be required to take into account the spirit and rationale of the reasons for prohibition of disclosure by the original acts.
• Ministers should use their FOIA s75 powers to review and repeal unnecessary restrictions on information publication as part of their wider efforts to increase transparency and openness in Government
• Expand the "Regulatory Impact Assessment" process to include an assessment of the impact of any new law on Freedom of Information. The assessment should robustly justify any additional restrictions on freedom of information introduced by new legislation.
• Amend the terms of reference for the various parliamentary committees on scrutiny of secondary legislation so that they are able to draw MP's attention to any FOI restrictions being Ministers are seeking to introduce.

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