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Revising the s.45 code of practice

Data inspection iStock 000008204804XSmall 146x219The Cabinet Office recently put out to consultation a revised draft code of practice under s. 45 FOIA. Ibrahim Hasan examines the changes.

Amongst all the hype about GDPR it is easy to miss developments in other areas of information law. In November 2017, the Cabinet Office published the revised code of practice (under section 45 of the Freedom of Information Act 2000) for consultation.

In July 2015 the Independent Commission on Freedom of Information was established by the Cabinet Office to examine FOI’s operation. In its report the Commission concluded that FOI was working well. It did though make twenty-one recommendations to enhance the Act and further the aims of transparency and openness.

In its response to the Commission’s report, the government agreed to update the S.45 Code of Practice. The draft code provides new, updated or expanded guidance on a variety of issues, including:

  • Transparency about public authorities’ FOI performance and senior pay and benefits, to mandate FOI Commission recommendations for greater openness in both areas.
  • The handling of vexatious and repeated requests. The FOI Commission specifically recommended the inclusion of guidance on vexatious requests.
  • Fundamental principles of FOI not currently included in the Code, e.g. general principles about how to define “information” and that which is “held” for the purposes of the Act.

The code is not law but the Information Commissioner can issue Practice Recommendations where she considers that public authorities have not complied with the guidance set out in this Code. The Commissioner can also refer to non-compliance with the Code in Decision and Enforcement Notices.

As well as giving more guidance on advice and assistance, costs, vexatious requests and consultation the code places new “burdens” on public authorities including the following:

  • Public authorities should produce a guide to their Publication Scheme.
  • Those authorities with over 100 Full Time Equivalent (FTE) employees should, as a matter of best practice, publish details of their performance on handling FOI requests.
  • Pay (salaries over £90,000), expenses and benefits of senior staff at director level and equivalents should be published at regular intervals. Of course local authorities are already required to publish some of this information by the Local Government Transparency Code.
  • The public interest test extension to the time limit for responding to an FOI request should normally be no more than 20 working days.
  • Internal reviews should normally be completed within 20 working days.

Furthermore, the other S.45 Code covering datasets will be merged with the main section 45 Code so that statutory guidance under section 45 can be found in one place. There will also be an annex explaining the link between the FOI dataset provisions and the Re-use of Public Sector Information Regulations 2015.

Public authorities need to consider the draft code carefully and decide whether the additional obligations are workable given pressures on resources, especially due to GDPR’s pending implementation.

The deadline for consultation responses is 2 February 2018.

Ibrahim Hasan is a solicitor and director of Act Now Training. This article first appeared on the Act Now Blog.

Act Now will be discussing this and other recent FOI decisions in its forthcoming FOI workshops and webinars. Information on the company's courses can also be found on Local Government Lawyer's courses and events section.

For those wanting an internationally recognised qualification the BCS Certificate in Freedom of Information  starts in February 2018 in Manchester and London.

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