Today is International Day for Universal Access to Information.
In recognition of this, we considered how journalists and the media commonly use freedom of information legislation in pursuit of the public interest. This has been brought into sharp focus by the recent coverage into allegations against media personality Russell Brand.
The legislation
In the UK, the right to access information is protected by the Freedom of Information Act 2000 (and, in Scotland, the Freedom of Information (Scotland) Act 2002). Freedom of Information (FOI) requests are a vital tool used by investigative journalists to expose information held by public bodies on issues which engage the public interest.
An FOI request is a request made to a public body to inquire about information they hold. The definition of “public body” is a broad one, encompassing bodies which might be private in nature (such as corporations), but which receive public funding. This would include the BBC for example, but only where it holds the information for purposes other than journalism, art or literature (in which case the information is protected from disclosure). So, for instance, information relating to news sources would not be FOI-able, but information relating to internal complaints handling at the BBC could be.
There is no requirement to cite the legislation in order for the request to constitute an FOI request. To be a valid FOI request, the request need only (a) be made in writing, (b) state the name of the requester and address for correspondence (which can be an email address), and (c) describe the information requested.
Organisations must respond to requests for information promptly, and in any event, no later than the 20th working day following receipt of the request.
The organisation can refuse to grant the request if they do not hold the information requested, or if one or more of the statutory exemptions apply. Their refusal notice must explicitly state which exemptions are engaged, and how these apply to the facts at hand.
FOI requests relating to Russell Brand
Recent coverage of allegations of sexual misconduct against Brand demonstrate some of the limitations to freedom of information.
A year ago, journalists investigating allegations of misconduct against Brand made an FOI request to the BBC, looking to obtain information about any records of complaints held by the corporation against the comedian. The BBC declined to provide information, relying on exemptions under FOI law.
Generally speaking, the concept of freedom of information dictates that there is a presumption in favour of disclosure. However this is qualified by a number of important exemptions, which organisations may need to apply where information should not be disclosed.
We understand that the BBC refused to disclose the information requested on the basis that the information included the personal data of a third party. While the specific reasons for refusal are not known, the information could conceivably have included sensitive personal data relating to Brand, a complainer, or any other individual, which the BBC was not authorised to disclose.
Exemptions and the public interest test
Under the Act, there are a limited number of “absolute” exemptions. If one of these exemptions applies, the organisation does not need to release the information requested. Information relating to personal data of third parties is an absolute exemption.
Other exemptions under the Act are “qualified”, meaning that the organisation must weigh the public interest in disclosing the information against the public interest in withholding the information. “Public interest” in this context means that there is some identifiable public good in releasing the information. This is a higher threshold than simply being “of interest” to the public.
The public interest test can be a delicate balancing act, but factors which may weigh in favour of disclosure might include:
- increasing transparency and accountability of the organisation;
- scrutinising public decision-making (e.g. best use of public resources); or
- upholding standards of integrity within the organisation.
Changes to FOI law in Scotland
There have been calls to update FOI legislation, which is currently over 20 years old. Since the FOI (Scotland) Act 2002 was introduced, the information processing landscape has evolved significantly, as has the way in which “public” services are provided. Katy Clark MSP has proposed a Bill to reform FOI law in Scotland. The proposals include extending coverage of FOI legislation to all organisations delivering publicly-funded services, increasing proactive publication of information, and scrapping absolute exemptions in favour of applying the public interest test to all exemptions.
We will provide further updates once the draft Bill has been published.
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