Uncertainty as to the future of Freedom of Information (FOIA) rights in the light of the Government consultation to vary the fees structure has recently been resolved. Gordon Brown announced on 25th October his decision not to limit the existing rights of individuals and the press to make FOIA requests by imposing more stringent fees limits. The current fees regime remains unchanged which means that individuals can continue to make requests without charge up to a certain limit. He did announce however a package of measures to "enhance openness and increase public access to information".

This package includes:

• a consultation on extending the application of the FOIA to a range of organisations including commercial organisations that perform public functions. The consultation, launched on the same day, is seeking views in particular as to which organisations should be included and what services should be considered.
  
  
• a review into the way personal information is shared and protected in the public and private sector. This review is being conducted by Richard Thomas, the Information Commissioner and Dr Mark Walport, Director of the Wellcome Trust.

In the meantime, in a series of published Decisions, the Information Commissioner and the Information Tribunal are extending the interpretation of the existing rights to information by taking a fairly restrictive view on the interpretation of the FOIA exemptions and the public interest test. There is emerging a significant body of case law which "informs" the decision making of any public body as to whether or not information should be disclosed.

Unfortunately, however, our experience is that information officers are having difficulty in keeping up with this developing case law. More significantly some organisations are falling behind in terms of implementing good practice in the process of decision making and the making of robust refusals where this may be appropriate. The reason is that requests may be sporadic and knowledge and expertise has fallen away but in addition there remains a need for continuing investment in training.

In the last few months, the Information Commissioner (supported by the Tribunal) has made it clear that poor practice is unacceptable and will lead to action. In two high profile cases involving Nottingham and Liverpool Councils widely reported in the press, the Information Commissioner has made stringent Good Practice recommendations which he requires to be adopted and is monitoring. Further in parallel DPA cases, he has prosecuted the Liverpool Council for failure to comply with a DPA subject access request whilst requiring the Northern Ireland Office to agree a formal public undertaking that it will in future comply with the subject access requirements of the DPA.

In the light of these developments, we recommend that public sector bodies review their current practices and assess the need for training and refresher workshops for key officers. Given the increase in inter-agency working, there is sometimes benefit in engaging in training for groups of agencies working together.

We are able to help you with bespoke training packages or to assist with the setting up of training networks.

For further details contact Eve Piffaretti; Tessa Shellens or Heledd Lloyd-Jones.