The “Freedom of Information (Parliament and National Assembly for Wales) Order 2008 No. 1967” lies at the heart of the MPs’ expenses row. Watching the saga unfold (as many did with “shock and awe”), I thought I could not be the only person on the planet who wondered why the redaction was so heavy, even to the extent of blacking out details that hitherto had been made available under FOIA.
A little research revealed that the above Statutory Instrument provides the answer as it contains an “exemption” (if that is the correct term) for the House of Commons (and Lords). The “exemption” applies to:
“(a) information relating to any residential address of a member of either House of Parliament,
(b) information relating to travel arrangements of a member of either House of Parliament, where the arrangements relate to travel that has not yet been undertaken or is regular in nature,
(c) information relating to the identity of any person who delivers or has delivered goods, or provides or has provided services, to a member of either House of Parliament at any residence of the member,
(d) information relating to expenditure by a member of either House of Parliament on security arrangements”.
So when Parliament decided to publish its documents, it could take account of the above. Note that paragraph (a) accounts for the total blackout of the all address information from Council Tax Bills etc; paragraph (b) relates to redactions of details of travel destinations to the MPs constituency (which, of course, is in the public domain anyway); and paragraph (c) relates to redactions in relation to the provision of important Parliamentary services such as “moat cleaning” or “duck housing”.
However, the clever wheeze, so to speak, is the “exemption” itself. It has been implemented into FOIA not as an absolute or qualified exemption, but as part of the definition of “public authority” in Schedule 1 of the Act. Thus the House of Commons (and Lords) are public authorities, but not in relation to the information falling into the categories above.
Section 1 of FOIA states that “Any person making a request for information to a public authority is entitled to be informed in writing by the public authority whether it holds information of the description specified in the request, and if that is the case, to have that information communicated to him”. So if a body receiving a request for information is not a “public authority”, then the request falls at the first hurdle.
In other words, all FOI requests will fail because they cannot meet the threshold required by Section 1. All the Information Commissioner can do is check whether the information falls within the four categories identified – then go home. There is no effective complaints procedure, no internal review, no appeal, no Decision Notice, no Tribunal etc etc – “no nothing” as an Eastender’s cast member might say.
What is more, if there is to be a change in transparency, that change must be made to the FOIA law itself. In other words, MPs have to change the law to include themselves in the FOI Act. Even with the all the brouhaha surrounding the MPs’ saga, this prospect is the FOI equivalent of “turkeys voting for Christmas”! If I were advising FOI campaigners, the repeal of that SI would be the focus.
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